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r 



o 



>MPLETE COLLEOTION 



OF 



' • « 



State 




AKD \ 



^GS FOR HIGH TREASON AND OTHER 
CRIMES AND MISDEMEANORS 



FSOM THB 



VRLIEST PERIOD TO THE PRESENT TIME, 



J^OTES AKD OTHER ILLUSTBATIOJ^S 

COMPILED BY 

B. HOWELL, Esq. F.R.S. F.S.A. 



VOL. XVII. 

A.D. 1726—1743. 



LONDON: 

rTEI> BY T. C. HANSARD, PETERBOROUGH-COURT, FLEET-STREET s 

MAM. H VBST, REE8, ORME, & BROWN; J. RICHARDSON; BLACK, 
V, 8c CO.; E. JEFFERY; J. HATCHARD ; E. LLOYD; E. BUDD ; 
J1.I>ER ; J- BOOKER ; CRADOCK & JOY ; R. U. EVANS ; J. BOOTH ; 
r. C- HANSARD. 

1813. 



<f 



• • • 






• ••• «.« 



• • . • • • 
• ■ • • • 

• • • • • • 



• • • * a ■ • ' 



* • • • 









^.^A 



TABLE OF CONTENTS 



TO 

VOLUME XVII. 



*0* The new Artidei are marked [N.] 



REIGN OF KING GEORGE THE FIRST. 

Page 
407. The Itial of JOHN GRAHAM, ALEXANDER CRAW. 
FOORD, and WILLIAM HOGG, for drinkiDg the Pretender't 
Healtby a«d. 1715. Now first printed from the Records of Jus* 
tidaiy at Edinbwi^ [N.] 1 



46B. Hie TMal of Mm^ JOHN ONEBY, at thm Seselons-House in the 

Old-Bailqr, lor the Murder of Wm. Gower, esq. a. d. 1726 90 



* 



REIGN OF KING GEORGE THE SECOND. 

469. The Trial of JAMES CARNEGIE, of Finhaven, before the Courif 

of Justiciary (in Scotland), held at Edinburgh, July 25, for the 
Murder of Charles Earl of Strathmore, a. p. 1728 ..rb 74 

470. The Case of EDMUND CURL, Bookseller, in the King's-Bench, 

for publishing a Libel, a. p. 1727 • •••• .^t. ...••• 154 

471. The Trial of WILLIAM HALES, for forging a Promissory Note 

for G,40tf. in the Name of Thomas Gibson, esq. and Partners, 
and for poblishmg the same as a true one, knowing it to be false 
and counterfeit, a. d. 1728 162 

472. The Trial of Mr. WILLIAM HALES, at the Scssions-House in 
the Old-Bailey, for Misdemeanors, in forging several Notes and 
lodoraementt in the Name of Samuel Edwards, esq. and publish- 
ing the aamey knowing them to be forged, a. p. 1729 210 



TABLE OP CONIXMTS. 

Page 
The Trial itf WILLIAM ACTOK, Deputy-Keeper ml H««d 

Timikty of the Manhalset Prken m Southwark, for the Murder 

of ThoiDis Blitty late a Pirisoiier in the said Prison, at the Asrizes 

held at Kingston-upon-Thames, for the County of Surrey, Aug. 

1, A.D.I7S9 469 



B The Trial of WILLIAM ACTON, for the Murder of John Brbm- 

fiekl, at King8ton*upon-Tliames, in Surrey, August 2, a. d. 1729 511 



I 



H. The Trial of WILLIAM ACTON, for the Murder of Robert New- 
ton, at the Assizes h'dd atKbgatcm-upon-Thames, for the County 
of Surrey, Augusts, a.d. 1729 • 506 

BS. The Trial of WILLIAM ACTON, for the Murder of James 
Thompson, at the Assizes held at Kingston-upon-Thames^ in 
Surrey, August 2, a. d. 1729. .•••... 546 

ft %?eral IVoeeedingcr relaiidg to the baiHng Mr. B AMBRID6E, both 
at the King's-Beneh, and at the Sessions-House, in the Old-Bailey, 
previous to his Trial for Felony, a.d. 1729 •••.••• 563 

IS7. The Trial of THOMAS BAMBRIDGE, esq. for Felony, a. d. 

1729 582 

Ke. Minutes of the Proceedings of the Committee, appointed to enquire 
into the State of the Gaols of this Kingdom, touching a Charge 
against Sir ROBERT EYRE, knt. Lord Chief Justice of his 
Majesty's Court of Common Pleas, for personally visiting Thomas 
Bambridge, late Warden of the Fleet, whilst he was a Prisoner in 
Newgate, under a Commitment of the House of Commons, &c. &c. 
A.D. 1730 619 

Ml The Trial of Mr. RICHARD FRANKLIN, for printing and pub- 
lishing ** A Letter from the Hague,'* in the Country Journal, or 
CrafUman, of Saturday, the 2d of January, 1731, at the Sittings 
of the Court of King's«Bench, at Westminster, on Friday, Dec 3, 
A.D. 1731 620 

ft The Trial of Mr. JOHN PETER ZENGER, of New- York, Printer, 
ior printing and publishing a Libel against the Government, at 
New-York, on August ^ih^ a. d. 1735 675 



TABLE OF CONTENTS. 

Page 
491. The Trial of JOHN OUPHANT and others, for drinldng to the 

Health of the Pretender, and curring the King, a.d« 1715. [Now 

first published from the lUcordsofJustidary at Edinburgh.] [N.] 763 

499. The Trial of Mr. GEORGE ROBERTSON, Minister, for neglect- 
iDg to pray for the King, a. d. 1715. [Now first published from 
the Records of Justiciary at Edinburgh.] [N.] 788 

493. The Trial of ALEXANDER STEWART, for maintaining the Title 

of the Pretender, a. n. 1715. [Now first published from the Re- 
cords of Justiciary at Edinburgh.] [N] 791 

494. The Trial of JAMES GEDDES and JOHN CRAWFOORD ( Ser- 

vants of Lord Southesk,) for drinking the Health of the P^tender, 
and cursmg the King, a. d. 1715. [Now first published from the 
Records of Justidary at Edinburgh.] [N.] 799 

493. Case of the KING against GIBBON, a^ d. 17S4. Upon an Infor* 
mation, in the Nature of a Quo Warranto, by the King^s Coro- 
ner and Attorney, against the Defendant, to shew by what Autho- 
rity he claimed to be a Freeman of the Town and Port of New- 
Romney, at the Rehitk>n of William Jarvis. Triedat Kqnt Assizes, 
held at Maidstone, the 6th of August, 1734 802 

4%. Case of the KING against RICHARD ELLES, a. d. 1734. Upon 
an Information, in the Nature of a Quo WarrantOi by the 
King's Coroner and Attorney, against the Defendant, to shew by 
what Authority he claims to be Mayor of the Town and Port of 
New-Romney, at the Relation of Benjamm Man. Tried at Kent 
Assises, held at Maidstone, the 6th of August, 1734 822 

i97. Case of HENRY MOORE, Plaindfl; against the Mayor, Jurats, and 
Commonalty of the Town and Port of Hastings, in the County of 
Sussex, Defendants, a. d. 1736 846 

498. Pk-oceedings in the Trial of Captain JOHN PORTEOUS, for Mur- 

der, A. D. 1736 923 

499. The Trial of WILLIAM MACLAUCHLAN, for Mobbing, Mur- 

der and other Crimet, a. d. 17S7. [Mac Lourin's Aigunents 
and DecuHMH.] [N.] » PM 



TABLE OF CONTENia 

Page 
aOO. The Triak of SAMUEL GOODERE, esq. MATTHEW MA- 

HONY, and CHARLES WHITE, for the Murder of Sir John 

Dineley Goodere» bart (Brother to the said Samuel Goodere) on 

Board his Majesty's Ship the Ruby, a. d. 1741 1003 

MI. The Trial of QHARLES WHITE, for the Murder of Sir John 

Goodeie, a.d. i74fl.« , 1079 



JOS. The Trial of JAMES ANNESLET and JOSEPH REDDING, 
at the Sesttoos-House, in the Old-Bailey, for the Murder of 
Tbomas Egglestone, a. n. 1742 ••••••••• 1094 

m. The Trial in Ejectment between CAMPBELL CRAIG, Lessee of 
JAMES ANNESLET, esq. and others, Plaintiff; and the Right 
Hon. RICHARD Earlof ANGLESEA, Defendant, a. i>. I74S 11S0 



* 



\ 



ADVERTISEMENT. 



Mr. Cohbett having disposed of his IfUerest m this Woik, 
the future Volumes will be published under the TUle prefixei b 
this Volume ; and new Titles will be furnished for the first lb 
Volumes. 

*ii* CommunicatioDB for the Work will be received b}' the Printer. 



Lately published, by the same Proprietors^ 

The Thirteenth Volume of 

THE PARLIAMENTARY HISTORY OP ENGLAND, 

From the Earliest Period down to the Year 1803. 

[Vol. XIV. will be published in February.'] 

Also, 
THE PARLIAMENTARY DEBATES, 

From the Year 1803 to the present Time. 

The Twenty-first, Twentt-second, and Twenty-third Voluiiiet cf the 
Work, comprising the Debates in both Houses of Parliament during the Sesuon 
1812, are ready for delivery. 

*4,t* Subscribers who may not have completed their Sets are requested to make 
immediate application for the Volumes wanted. 



A COMPLETE COLLECTION 



OF 



STATE TRIALS, 



467. The Trial of John Graham, Alkxandku Crawfoohd, and 
William Hoog, for drinking the Pretender's Health: 
1 George L a. d. 1715. [Now first printed from the Re- 
cords of Justiciary at Edinburgh.] 



Cnu JomcfARiA^ S. D. N. Res^, tenta in 
Pneiorio Burgi de EfliDbargb, trigesimo 
primo die mcnsis JaDuarij miiJesimo sep- 
tinjfeotesiroo decimo qniDto, Per Hono- 
nbites «iro8, Adam Cockburne of Ormia- 
Umn Justiciariuro Clericum, Dominoa 
GUbertum £liot de Minto, Jacobam Mac- 
kenzie de RoyitouQ et Gulielinuro Calder- 
wood de PoUoiin, Magistros Jacobum 
HamihoD de Pancaitland et Davidem 
Efikiiie de Duo, Commissionarios Justi- 
ciirij diet. 8. D. N. Regis. 

Curia legittime afHrmata. 

IntraiC John Graham, youDgfer, of ^ew- 
^^n: Alexander Crawfoord^ younger, of Man- 
niulmiln; and Mr. William Il^gg, desiu^ned 
kr^ of Edinburgh, professor of pUilosophy . 

iVDICTED and accused at the instance of sir 

Pivid Dalrynnple of Hailes, baronet, his ma- 

jf^'y's advocate for his majesty's interest, for 

Jniikiojjr the Pretender's health, in manner 

mentioned in the criminal tetters raised against 

'h^ thereaoent. Makeing mention, that 

*j»*Te, by the laws of ScoUaml made before the 

^ Dion, particularly, the 4th act of the first 

*J*«»oo of her late majestic queen Anne of 

i'-'cfted memory, her first parliament, intituled, 

Act airaiost I>easiog Makers and Slanderers, 

»3'i Che acts therein recited. And by the laws 

*>f ill well goTemed nations, leasing makeing, 

^ the uttering of sUndrous speeches, tending 

^ excite sedition, and alienat the affection of 

^ people from his majesty's person and go- 

vnnmeot, or to sett up and encourage the false 

^ icandalons pretensions of any person to the 

p^Jiidice of hift majesty, his estate, and his 

JQX lod law full title to the crown of these 

'(•Ims, stirring up thereby his subjects to mis- 

IiluiHrB, sedition, unquietness, and to cast off 

^rdoe cibedieace to bij majestie, to their evi- 

VOL XVII. 



dent peril, tinsell and deftructioti, are crimes of 
a high nature and severely punishable. And 
more especially, whereas by an act of the par- 
liament of Great Britain, made in the sixth year 
of the reign of her said late majestie queen 
Anne, intituled, Av Act for the Security of her 
majesty's person and goveniment, and of the 
Snooession to the crown of Britain in the Pro- 
testant line; It is amongst other things en- 
acted, That if any person or persons shall mali- 
ciously and directly, by preaching, teaching, or 
advysed speaking, declare maintain and afnrm, 
that the pretended prince of Wales, who now 
stiles himself king of Great Britain or king 
of England by the name of James tlie 
third, or king of Scotland by the name 
of James the eight, has any right or title 
to the crown of these realms, every such 
person or persons shall incurr the danger and 
penalty of Premunire made in England, in the 
16th year of the reigne of Richard the second. 
Yet nevertheless it was of verity, that the saids 
John Grahamc, Alexander Crawfurd and Mr. 
William Hogg, and each of them were guilty 
actors art and part of the foresaid crimes, in so 
far as, upon the 15th or 16th days of the moocth 
of December last 1714 years, a stoup with ale 
in i^ or some other liquor, being bront(lit to 
the street of Edinburgh, near to the Tron 
church and to the main guard, by a woman to 
them, and a cup filled up and delivered to the 
said John Grahame, he proposed the king's 
health, and one having aslced what king? the 
said Alexander Crawfurd cried out, Ring James 
the eight; whereupon the said John Grahame 
drank to the healili of king James the eight, 
and the cup being filled np again twice to the 
said Alexander Crawfurd and Mr. William 
Hogg, each of them did likewise drink and 
spoke these words, To the health of king James 
the right, and not contontetl with their thus 
direct open affirming of tha pretooded and 



Aleiander Cnwlurd nd Mr. William Hagi(i 
did drink tu Ihe bappy mioration of (he uld 
Pretender, under the DBine of kitiK Jamea the 
eight ; which words, Tn llie health of kln^ 
James the ei^ht, aai to the happy-reituratioD 
of kinti Jamea the eight, orwonls to that effect, 
thev and each of them did pranoonee allaad, 
and huzza'd at each health, daDcin^attheaame 
time, and haTiog hautboyi playiDE te them 
in deniongtratioD of Iheir Joy and afiectioD to 
what they were doing, la open deBaoce and 
GODlempt of the lawi generally and particu- 
larly aboTe mentioned, and they were seized in 
the Tery act, or iocontineDt thereafter beinff 
pnnued by Ihe city guard*, and the atoup and 
cup found iu the place to which they had fled, 
■nd wherelhey were taken, and the aaida John 
Gnham, Alexander Crawfnrd, and Mr. WUHam 
Hogg were immediately thereafter brought 
priaonera into the guard, £^v all which, they 
and each of them, were guilty aclora art and 
part of the breach of the aaid Mwi, which, ur 



Trial qfJohn Graham and others, 

Iktoilvation for his Majeity't Advoc 
highoeHS interest, 



*«raict 01 an aBiae, oerois idb wrua jiuuc* 
j^SDcral, jutice okrk ud oommiaaiouera of 
jiiaticiary, they and each of them ought to be 

Cuniahed with ihe pains of law. And particn- 
irly, they and each of them ought lo be putt 
out of his m^eaty'n protection, aud eadi ot' 
ibeir landa, leneracuta, gooda, cbaltellaor morc- 
aUet Ibrfaulted to hia majeatie, aud otherwise 
punished conibrm to the aaid iiatote of Pm- 
tnunire made in Epslaiid iu the sixleenlh year 
of the reigne of BicnanI the second, lo the ex- 
ample and terror of others, lo oommitt tha tike 



Akxandtr Crmfurd'i Canfaiitin. 

The shore named Alexander CrawfunI, nne 
of tlic panneU judicially, in presence uf the 
lords and ssbysen, acknowledges and confessea 
the tybel), in so far ns relates to him, aud 
hnmbli throws himtvlf in the kiiiz's mercy. 

Sit Subscribitur,- Alex. CiuwTuRn. 

Ad. Cockburne, 1. P. D. 

Purttifri. — Sir Dmvid Dalri/mpU of Uailn, 
barunel, his niajeiit} '• adrocale fur lua hifrhness 
interctli sir JunMi SleicatI, bis majesty's ro- 



llie Lybel being read and fully debate uva 
*wc, JD presence of the nid lords, panoells, 
and aaaysers, Ihe lords justice clerk and com- 
niiniionera of justiciary, ordain both partiea to 
giro ia (heir iabnnatiuis, Ihe pursuer lo gire 
in hit, betwixt anil Wednewlay's night next, 
and Ifae paDMltB to gire ia theirs, betwixt sod 
Friitsy'a uighl IbereaAer in order to be re- 
conled j and cootinaed (he dyai of ^e lai^ 
cauM! till Hotrfay oext at oyne o'dock, and 
entained anysera and wiloenes to aiteod then, 
Moll iimlartbe pun of one biiadred mcris. 



Villuatt Hogg. 

The Ktng't Advocate has raised a L\ 
Aire the lords of justiciary against it 
John Grakame and William Hogtr, I 
upon the fourth act first session nf her \i 
jestie queen A nne'i parliament in Scolli 
tiluled. Act against Leaaing Makers am 
derers, and the acts therein recited, mni 
cially reciting the worda of the 134 act, 
meot 8th Jamea 6lh, aud also foundei 
the late statute made iu the parliament o 
Britain, iu the Cth year of her said late n 
lied, Act for the Security of her m: 
person and gnrerDroeot, S^. Where 
ig*t other things provided. Thai 
>n or persona ahall maliciously and d 
reaching, teaching, or adiysed ap 
ir, maintain, and affirm, that ihepr 
prince of Wales, who now Styles himsi 
of Great Britain, or king of England 
amestheSrdi orkingofScol 
of James the ath, has any r 
I of these realms, erery such 
shall incurrthe penalty of Praemunirs, ( 
to the act made in England in the 
Richard (he 3d. 

The L^bel subsumes, that the defem 
guilty Ot the saids crimes, having u; 
ISIh, or IGth of December last, drink 
Pretender's heahh, under the name 
James the 8lh, and also drauk to his 
resturalion ; aud Ihe libel mentions, 
words were pronounced loud niih 
having hautboys playing, aud the di 
showiti); other marks of joy, in upen o 
aiiddeiyani»«f tlie laws generally m 
ticularly above menlioDed. And that 
fenders being surprised in the act by 1 
guards, fled, but being incontinent pursi 
were made prisoners. And concludes 
which, they and each of Ihem are ^uill 
art and part of the breadi of the said la 
ought to be punished with the pains 
And rarticularly with the pains ol' Pne 
Tix. To be putt out of the king's ptotecl 
each of their Isnda, tenerocnli, goods, 
or moveables, tbrfanllcd to his majestit 
The defender premised to his mate, 
facts Ij belled being denyed, he (hong 
self bound naverth^es* to declare, Iha' 
could be proved, they amounted to a ti 
imprudence, and mdiscietioa very- 
worthy, but that erery act of imprudt 
not amount to a crime pualaliable by la 
And tberelore, the first defence waa 
defender John Urabame was in drinl 
degree, aa not to kaow or ictnember 

It waa answered for th« pmaaui in 
place, that by the coniBoa opinioB of 
(he tfuilt of oimiBal tacbi ia iacnaaw 
qnaS^ of dM pcriMs aguoit whan 



B] 



^r drinking the Pretendcr^s Health, 



A.D. 1715. 



re 



Mmmitted, aod other drcamttancei . Therefore 

tfw same fact, which done against a person of 

Ww condition, would import but a small con- 

icBiptorimpnideiicenot punishable ; yet being 

Ant aicaiDst a magistrate or person in dignity, 

wwild lie crimiDal and punishable. Tlie same 

MS vhick at one time might be innocent and 

iaofleBHTe, am the drinking of a health, vet at 

uMbv time may be criminal and punbnabie, 

vbcB it is the noited badge and symbole of 

fMfiirlbat are disaffected. The same facts 

■M would inferr but a light dignity in thtf 

SMBB sf a priTote person, when they come to 

kipplyed to the state aod ilignity of a king, 

if Ibrj be imprudent and hinme worthy, are 

erinMsl. But more particnhrly, as to the de- 

facB, it it answered, First, That drunkenness 

ii BOt araperiy a defbnoe exclusive of the lyhel, 

lbs only dfect U can have is to make an allc?ia- 

lin sf the sentence or punbhment; drunken- 

I not deny the crimes, but only excuses 

to l es s e n the guilt : Ffor, it the fact 

mnese Hid affinti an exemption to eleid 

ibe Ifbel, it would inTile men to commit crimes, 

fir it were easy for a man that is embittered 

vi^ a^ rooted malice to get himself drunk, 

~ ' in that stale to perpetrate the greater 



My, Drunkenness is not relevant even to 

ilsia ao alleviation of the sentence, for drink- 

>if to excesa is not only an imorality, but 

is a crime, and he that is drunk 

re illicit^,' which certainly can 

I bim a legal exemption, cither 

the lybel, nor for alleviating the punish- 



'M 



3tfy, The drunkenness has by the custome 
•t Maa all nations, lieen admittc<l as an allc- 
viuMaia cases capital!, that can take no place 
bar, ferasae of the acts ly belled on inflict the 
laasfdMi. But, 

<lbfy, Drimkenness is not relevantly pro- 
pnifd even lor alleviation, because it is then 
*bIv relevant, when it is alled^ed to have been 
^ ibst degree, as to deprive the defender of liis 
Jid^ament and senses. But the lybel mcntimis 
ftcts that exclude the possibility of that de- 
fect, viz : The defender came with baut- 
kyi to the place, and drink bciu^ brought to 
wn, tlie said John Grahamc called out The 
bi^ beahh, Crawford another of the company, 
crvcd out What king, king Janirs tliR 8th ? 
iipos which the said Grahame and Hogpr, as 
vtU as Crawfurd, drunk to the health of king 
JiBMs the 8th, and after that proceeded to 
^ak to bis happy resluration. And when the 
fttsrds came up, he had his senses fresh enough 
knin. aod emleavour to make his e!>cape. If 
1^ facts or the substance of them be proven, 
Hibey are ly belled, it were in vain, or indeed 
to lay a soare'for perjury, to allow the defender 
h pove that he was dead or stupid drnnk. 
^ therefore the Brst defence ought to be re- 

Aad whereai the defender excuses his not 
p*"iug the crime, laying the blame upon 
■> kaag drunk, and ha? iog forgote ; the pur- 



suer cannot hut observe, that this excuse is but 
an aggravation or mark of obstinacy, for the 
defender had never time to forget, he was taken 
* in flagranti delicto,' and keept prisoner till 
next day that he was examined upon the facts 
in his presence, aflter which he was committed 
and remained priboner till he was indictcil. 
Where then was there time for him to forgett ? 
He was certainly sensible of his guilt whence 
fled, he nas taken in his flight, and has still 
been keept in remembrance of it. 

But since the defender thinks, that his in- 
sulting of the government may be evaded or 
excused, it reraams now, that the lords of jus- 
ticiary do convince him of the contrary, by 
maintaining the vigour of public discipline, for 
indeed otherwise his tryal might have tliis bad 
effect, viz. To shew how cheap and easy the like 
offence may be committed in time coming, 
which might grow into more incurable dis- 
orders. 

The 9d deffence proponed was, that the 
lybel is founded upon the acts of parliament of 
Scotland against leasing makins^, &c. And also 
upon the statute of Great Britam the 6th of the 
late queen, but the judj>;es cannot proceed upon 
these laws joyntly, Uf cause the punishments 
are different. And also because, where any 
new penal law is made for punishing any tact 
punishable by a former law, the former law is 
su^ierseded eo iptOt and since a man cannot be 
twice punished for the same crime, he mnstbe 
punished on the last. 

And to confirm this more, it was urged for 
the defender, that by the late act Anno 6to 
Regime, there are several things introduced for 
the benetitc of the subject, whereof the subject 
would be deprived if they were to be tryed on 
the old acts concerning Icasincr makeing. As 
for instance the new act requires a malicious 
direct deed, by advised speaking, declaiiing, 
raaintainiiicT) and a!Hrmin«^. And it provide:^, 
that no person shall he prosecuted upon that act 
for any words spoken, iniless inlbrniation he 
given upon outh, wiiliin three days after the 
words spoken, and the prosciMitiou be within - 
three months iifiersueli inrnrmalion. And it is 
agaiii St reason, that upon the same facts there 
should he temporary actions and perpetual 
actions. 

It was answered for the pursuer. First, that 
he cannot btit observe, tiiat the crime in ques- 
tion tieinti^ a contempt of the kin>;V :i>ithority 
and title, the very defence founded upon the 
merciful statutes pasi since the Revolution, is 
an a;7gravation of the crime. Ttiere have been 
times when the least offence has been strained 
to be the highest treason, or drawn within the 
compass of severest laws, tlie eon.vtant character 
of tyrranic. But now by God's good provi- 
dence we are under a •gentler aduiinistiatrun, 
the government and tlie petqde are in tiie same 
interest, and the laws ihiiionstrate nmlual con- 
fidence, the lirst consiMjuence of so happy a 
statute. 

But this gentlene«-'s of the laws is not to ex- 
pose them to elusion, the laws ore the mora 



7J 



1 GEORGE I. 



Trial of John Graham and othergf 



I 



particularly to be observed , because the pooish- 
inents hare beeu soiUned both in the case of 
leasing niakin^r, and in that of the statute of the 
6th of the queen, and Uie same fact must be a 
more attrocious crime, when committed a^inst 
so ijrentle a government, than it would be in the 
statute of rigour and terrour. 

This being premised, it is more particularly 
answered, that the defence is irrelevant, ffor, 
First, it is no new thing, that several acts of 
parliament should be msuie fcA- restraining one 
and the same delict, and that these severu acts 
should be made the major proposition of a lybel 
against offenders, a matter so nottour, that it 
needs no particular instance to clear it. 

Sdly. The general rules of law in tliat case 
are against the defence, for though it be a 
maxiuie that * posteriores leges derogant pri- 

* oribus,' yet that is only wliere the posterior 
law abrogates or is directly contrary to the 
former, for otherwise a law made, or a law in 
possession is more tioivourable than a new law- ; 
the law is jealous of alterations, and admitts of 
them only in cases of necessity, and so far as 
the necessity requires. And therefore the civil 
law has excellently defined, that prior laws are 
drawn to the posterior, yet it subjoins the ge- 
neral caveat, *• Sed et posteriores leges ad pri- 

* ores pertinent nisi contrariee sint. L. 26, 27, 
' 28 ft*, de Legibus.' And very agreeable to this 
and to the present case, Hermo;;enianus and 
Paulus the lawicrs have said, ' Cum ex unode- 
' lido plures nascuntur actiones, sicut evenit 

* cum arbures furtim esse dicuutur omnibus 
' experiri permitti post magnas varietates obti • 

* nuit. L. 32 sect, de oblig. 6c actQuotiens Lex 

* obligationem introducit nisi si nominatim ca- 

* verit, ut sola ea actione utamur, Eliam veteres 

* eo nomine actiones comuetere si ex eodem 

* facto duse competant actiones, postea Judicis 
< potius partes esse, ut quo plus ea sit in reliqua 

* actione id actor ferat. Si tan turn idem ut 
' minus id consequatur L. 4 eod.' And so the 
same Paulus,' Si furtim arbores ccesoe sint et 

* ex Lege Aquiliii et ex duodecim tabularum 

* dandam actionem Labro ait. Sed Trebatius, 

* ita utrainquc dandam ut judex in |K>steriore 

* detlucat, id quod ex prima conseciita sit et reli- 

* qua CFUudemuct,' and it is observable, that the 

* actio arborum furtim caesarum,* and the ac- 
tion * ex len^e Aquilia' \t ere both penal, and bad 
ditferciit penalties. That if the ' Lex Aquilia' 
f^'as to repair tlie damnage, according as the 
thing had been of greatest value for a moneth 
before tlie thing happened, which very often 
was much more than the real value, and the 
action * arborum furtim ctesarum' was given 
in ^ Duplum deductfi jirius arboris cmuD esti- 

* matione/ Nay, iH'sides these actions, there 
was yet a further punishment upon a separate 
fundation, ' secunuuiii est autem eos qui ar- 

* Iwres et maxime vites cocciderint, etiam tan- 

* qiiam latrones puniri. L. 2il eod.' 

To apply this to the present case, whereas 
the defender pretends, that the former laws 
concerned leasing mti king are supersedeil by the 
new hiw, Audo 6lo Kegine, if the said statute 



Anno 6to Regins does extend lothe pamshB^ 
of the same facts: ^ 

It is answered, First, that the defeoder'Bpil 
position is contrair to the authority of theMl 
said laws and reason itself. 

3ndly. If the facts shall be foond^to 
within the statute Anno 6to Regine, 
cording to the principles of the CivillAWi 
mentioned, the defenders being puDisbed' 
form to the statute Preemunire, there 
no occasion for the judges lo apply the 
mentof the laws made against teanog 
unless the circumstances being proven 
cious, shall deserve a further correctioii, 
that case upon tlie fundation of the lawi i 
cited, the judge is to proceed. 

And Sdly. It was necessary to foml* 
lybel upon both laws, because the act flf 
6th of the queen being a new statute, iti 
easily forseen, the defenders would 
anxiously to alledge that the facta lyl 
not fall under the compass of that stati 
indeed they have done, tho without aoy i 
foundation. 

And whereas it was further alledgal, 
the statute of the 6th of the queen, oovla 
benefite to the subject, which cannot ba ckHi 
by trying the crime on the old statotea agiU 
leasing making : " 

It is answered, that the defender miilakl 
for first as to the words, ' malidontly t 
rectly by speaking, shall maintain, dedart^ll 
afiirm ;' these contain no new benefit tolhtliri 
ject, for all lawsimposing pains upon any fiMl< 
offence, do expressly or tacitly require MiiB 
* deliberatum propositum,' and where th» i 
fence consists in words, it must be by flidi 
taining, declaring and affirming, wbicb M 
tains denying in the sense of the atatnlei i 
appears by the words that immediately Mill 
' and affirm that our soveraign lady toe quo 
is not, &c. *and therefore these words osnli 
nothing new* 

2dly. As to the provision, that no pcnkw tb 
be prosecuted but upon bwom informalioa 
words within three dayes at\er they areipokl 
and pn»secuted within three monetbs after i 
formation : 

It is answered (Imu) that the words of t 
statute are, ^ that none be prosecuted by veil 
of this act, and that none be convicted by vcft 
of this act.' — And therefore indeed, if the m 
suit were founded upon a sworn infbnDatM 
and only upon that act, sometliing mi^t 
said, why the defender should not iDCurr 1 
penalty of Premunire, unless the sworo infi 
mation had been within three days, and 1 
prosecution within three months. 

But the case is, the defender was takea 
Jiugranti delicto^ brought prisoner in lo I 
guard, where he was keept till he was broii| 
before a magistrate, and there the wiinca 
were bnm!y;ht face to face to declare tbefae 
in order to the question, whether he sbouM 
set at liberty or committed. The facta appoi 
iog nottour, as far as in that case was aeo 
sary , in order to Ibe quealion ot' impriaaanni 



firimUmgike Pretendet^s Heahh. 



JL D. 1715. 



[Id 



vhere be renwiocd till 
ded. If ibe ooannittmeDt wai legtl 
ihoB If ifd flagranti delicto^ then 
MM Biol ccrtaiDly be legal, be- 
fcomautud for tbil crime, be cid- 
end bat by doe ooune of law. 
Me vf the statute !■» wbere words 
,aad are not presently cballenged, 
(I most befin by a sworn loforma- 
tbree dnyes, for these kinds of iii- 
if the natnre of iiiinries by the civil 
I good rsmon the action ceased if 
nbiio injnriB.' That is, ' si quis 
d animnm non revoea? erit.^— The 
iks, that mnoiag of three days, 
f sworn information against the of- 
krse months without prosecntioo, is 
ffidence that the go? emnient passes 
lory, so far as not to insist upon the 
nemunire. But the defender being 
^roBli deUetOj is not within the cage 
rtsion ; the ^vemment instantly 
d animum injuriam,' the offender 
a the offence, and there needed no 
to be sworn against him, but if 
Ibe same fiM:t bemg punishable by 
England, as a misdemanour, as un- 
it is, the criminal pursuit tor such 
or still remains, but must be prose - 
irding to the laws of Scotland, and 
I can only be upon the foundation of 
psuist leasing inakiug. 
lap then what concerns the Answer 
EMoe, it is plain, that tbe lybel as it 
d, is Tery regular and well founded, 
kt laws of leasing making are not 
Ihj the act of ibe 6ih of the queen : 
wefore it was necessary to l^^bel 
I iki, that the defender being tryed 
smes of leasing making, suffers no 
ir4unage. 

ervas, it was further alledged, that 
Iocs only conclude the pains of tbe 
lute. 

swered, that the lybel is expressly 
I tbe acu of leasing making, and in 
Dptioo says, * it is of verity,.that the 
Niers sre guilty actois art and part of 
d crimes,' and after the narration of 
t of tbe facts, follows these words * in 
mce and contempt of the laiis gene- 
particularly above mentioned' and a 
', * they and each of them are guilty 
ich of tbe said lans which or any 
>f being found proven, they ought to 
d with tbe pains of law.' 
reason why the pains of Premunire 
particularly expressed, is because the 
9g new and less known, and referring 
i in the time of Richard the 2od, It 
iita favour to the defenders to trans- 
r that statute the words which con- 
inishment. But from thence to re-' 
ybel to the case of tbe statute of the 
i|oeen, is so manifestly against the 
e lybel, that the defenders must be 
1 M what the lawyer says, ** L. 19 



sect ad exhibenduro non oportere. Jos civile 
calumniari, ueq. verba captari, sed qua mente 
quid dioeretur anima advertere convenire." 

The third defence proponed was, that the 
lybel is founded on the acts of leasing malEing, 
and the foresaid statute of the 6ih of tbe late 

Jjueen. And Ua fit, that the facts lybelled, 
ail not within any of these statutes. 

And first, the ststute Anno Sexto ReginsB is 
in these words, that if any person or persons, 
shall maliciously and directly by preaching, 
teaching or advysed speaking, declare, main- 
tain and affirm, that the pretended prince of 
Wales hath any right or title to tbe crown ; it 
is agreed, say the defenders, that here is no 
preaching or teaching, tbe question is as to ad- 
vysed speaking * nuda emissio verborum„' and 
there the benignity of the lawgiver, knowing 
how much men are liable to escapes without 
malice or premeditation ; 

8do. How apt witorssesare to mistake words 
or to forget when things are not recently 
brou^t to prosecution. Therefore the law 
requu^ these qualities, First, that the words 
be spoken maliciously. 2ndly, Directly. Sdly, 
Advisedly, and 4tbly, That this may tbe more 
clearly appear, the words are ** by advysed 
speakmg,declare, maintain and affirm," declare, 
that is, openly and publicly, maintain, in tbe 
sense of the £n:;lisn law, is by argument to 
defend or to sup|K>rt, affirm, is to conclude and 
plainly to assert, and all these must concurr. 

Stio. Tbe information must be given within 
three dayes, and tbe prosecution must be with- 
in three months. 

4to. The case of advysed speaking is sepa- 
rated in the law from that of^ preaching and 
teaching, for as to speaking, the information 
must be sworn, and the pnisecution within the 
time above mentioned. And in the first words 
* shall by preaching, teaching, or advysed 
speaking' there is s disjunctive particle (or) to 
separate the case of speaking from the former 
two, which confirms also, that the three qoalities 
(declare, maintain and affirm) are to be taken 
conjointly ; ffor the lawgri?er having used tbe 
disjunctive particle so immediately before, would 
certainly have repeated it there, if it had not 
been intended that those three must concurr 
joyntly. 

And thus the defenders imagining, that they 
have established the sense of the law, for ap* 
plication pretend, that there was no malicious 
speaking, nor is malice so much as lybelled, 
nor any fact to qualifie it. 

2ndo. There was no advysed speaking , tbe 
defender being young, came to the street in the 
beat of drink, and uttered the words lybelled. 

3tio. There is no declaring, maintaining or 
affirming, what is lybelled are transient words. 

And as to the substance of the fact, 

Ist. The drinking of a health to any body is 
forbid by no law, and it is of itself innocent. 

2do. The drinking a health to the king, not 
adding of Great Britain, does not imply tbe 
drinkmg of the Pretender^s health. 

3tio. Tbe drinking to king James tbe 8tbr 



•■V a* 


?v. i»-<« : •« cv^me 


X 


;..c > y:«5*;i.\l io 


.v.* 




ft 


.. a: ^ Lzyti the 


V ■• 


. ■ u» j^ 4ttiritii:if 



p«>. -«-' • 



f 



^ •-'*^ 



.« • 



V, 



1. \ 



• ••\ « ' 



• \ 



» •. 



t 



It 



Tiiat nfJuhn Graham and atherjf 

that bdoDjf to it ; as for ioitance, ean the 
lertioff ot the iisur|M;(l title adyjaedlv, bt 
fcrentfrom doing it maJiciously ? Or ear 
aawrtin|r ndvysedly and malicioutly be diSf 
from doioflr it directly ? Can one inaiiitMi 
declare what be does not alKirin. 

It is then certain, that the worda of the 
are to be taken in this sense, ?iz. The affin 
ot' the title of the Pretender inferrs the jm 
nient of the law, and because this araii 
may be done by wry tin^ or speaking, bbA 
S|)eakiui^ may be done by preacbiofr, toafll 
or any other way, whereby in words th« M' 
lion of tlie ofiendm is plainly aignified, tM 
has made use of ? ariety of wonis, to nf 
one and the same criiney for the crime dMi 
consist in any form of pronouncing of OM 
words ; it consists in tlie asserting of tlM 
of the Pretender, whicli whoever doea m w 
erer form, does maliciously, directly amI 
vyscdiy, declare, maintain and affirm bia Hi 

Sdly. Thai the circumNtanccs lyhelb 
such an affirming, will apiiear to any mhm$ 
aiders, 

First, tliere are certain facts to whicb t 
tome hutii affixed a determined sense, and tl 
is none whereof the use and meaning is ■ 
incootestediy uudersiood, than thatof drial 
healths ; is any man ao ignorant as iiottoki 
that tlie going to a publick place aud drink 
the kiii;;'8 health, is a publick acknowlnl 
ment of his authority, as well as a wish for 
long life ? Is not the common form of ^L 
live the king," a formula of homage km 
both in sacred and prophane history P And 
any more than the drinking of a health P JH 
do their homnpfe by sivearing directly, th 
that hare offices by taking the oaths ; bvt 
body of the people have no other way of 
pressing their homage, but that acclamaft 
«< God save the king ;" it were fniitieaa lohi 
more reasons in a plain case. 

2iMy. As the drinking of the health ui 
that designation and stylo, is in the cont 
acceptance an acknowledgement of the I 
tender *s title as king James, so the aMan 
of that title is the cause of bis attainder ; 
title of king James the eight, is one of 
usurpations whereof the act complains, 
the wonls are, *^ He takes the title oft' k 
of 8cotland, by the name of James the eigl 
and tiierefore the drinking of a health to ^ 
person under tliat name by a Scotsman M 
the street of Edinburq^h, though he did not 
the words ** of 8cotland," can inijiort notli 
else, but t be drinking to his pros|ierity as fa 
ing that right, wliidi is directly and malicioi 
to affirm his title. 

Sdly. The circuoostancet likewise coni 
this, it was not affirming for argument si 
there was no dispute in tlie case, it was not 
t'>. lU wixsWr uiUtakcs the meaning of firming ex calart iracundir^ there wasno<|i 
i»>i iUtM> M*veial wonls of malicious, I rel nor contradiction, it was a deed d«-iibera 
ku( .iJmm-^I ^|M'aking, maintaining, de- done. The defender came with his aco 
«mJ .tiiiiiniiivf, are no otherwise to be plices to a certain place of tlie street, when 



. »i 



v» 



w^ »wh v aL<^iBi an 

.••.- « J M v«r«2i firi- 

V ..w-w- M in« crown 

'^ r^at^% Bwf could 

v«fi H Sviknil, be- 

...... -^ .(-»&k9CkML«a and name 

■ 'iNk 1'^ (» king James 

... . . % -vtMi HuiiHi» *and tohia 

... wi|^«'o M 4iti miog of Ilia 

. . .w^ ^»i ■ "^ KNHUrary, it ira- 

.. '•.-v» ■ ' t'.tiiriider baa no 

...> :* s . uit by alawtobe 

. .. * .. o . o. ««aru a person is 

. .*,.tM V ffi^, AVI ,^ru/iir, that 

. ..u .« -^ ^H SkV4.«nd is called a 

„.v ***»• , I »^' ****>d * restoration' 

. v%i\ .1... I'.vuuou, it is accord* 

,..v.i«^ v* >^ >^*« t^* be taken in 

A.I 4.S vi>t%Mr a crime. 

.•.0 v«|iiM*aUy insist upon 
uo w«»ids directly afBrao- 
I. ,1 > i>v.viuk-r. It is butan af- 
v.« M. M huh m matter cri- 

. . ■ .vi > \c «usi»fr to this way 

I «i .A* i'v*. .<aU put the defenders 

I t«v*.«ia I i>i iiuw cited, ** non 

. i\4:(> 1 ui iuN|ue verba cap- 

..kv«(vi.l I'cviviur auiinadver- 

i.i.H'i «*( AiuithiT maxim, 

,. .1 .^.... ^.ii ul i.ii*it ipitid lex pro- 

.vMi «%!%• «|ai sAUin verbis leges 

> * . -v'i«uk«\'<iu," licz 'ii>, Hect.de 

I.I ^i:t«thck part of tho law is so 

\ > I .KiUiuii tsi in legem com- 

^ii, ««iba Ir^isi aui|dexus contra 

tcknuAu'M. lav {wuias incertaa 

.«. K^Ai %%f (\Mitia juris scntentiam 

• o i \%kU»\iM\\ iVsudulenter exou- 

V i «\hI. . MUillhtti this was agree- 

iti.i\ t*(* «i'i*u in the act 108, 

Uui. •« iho I si, and others made 

.iwM% I'i ilii> Acis of parliament. 

.'.v ^Mtiicubily answered, to all 

•^... I « iiuMis u|Kin tbo words of the 

■UU'i't, 

•( ii.'«vi wstt there n more plain, 
■ ■■- , .l.kVi'i. iuU\seil, maintaiuing, 
4.1 1 AUuiiiiu< llit> title of the Pre- 



4i> 



II' 



i. 4« i.» ilio ipiality of the malice, 

• « tvui4i ttkihs iiniMi, it is in law 

oiti ihol.ici!i,aiul is uutby itself the 



,MiA ilv. ttiau as they contain a de» 
k.,>o\*i 4Ai'iHhouB fact with exaggentumi 



thought fitt to baity he came with musick, I 
the BDOMui timt in the iBonung might con 



Jvr itiMng the PrOendet** Heabh. 



A. D. 1715. 



tl8 



nw words nid to be spoken by the 
lo not fkU under the description of that 
eh CDsctSy That if any person shall 
■ly and directly, by advysed speaking, 
vaintaiD and amrm, that the pretend- 
M if Wales, who now styles himself 
Gnat Britain, or kin^r of England by the 
f Jasiea the 3d, or king of Scotland by 
m of James the 8, hath any right or 
ibe crown of these realms, shall incurr 
tkf of PrBmunire. And the drinking 
James 8ih's health, and the drinking 
■ppy restoration, is neither a malicious 
d declaration, maintainance or affirma- 
■i right and title to the crown of Great 
, and the lybel does not bear, that these 
acre maliciously spoken, or that the 
dU thereby declare and maintain the 
id prince of Wales had any right. 
The set reqnires, that the words where- 
right in the Pretender is affirmed, be 
§j wpekt. But the pursuer has laid no 
Mmi in his ly bel, firom whence it might 
ltd, that these words were advysedly 
« the ooDtrary, the pannel is brought 
aajTi buxsain^, dancing on the streets 
t low, all which circumstances are in- 
■t with deliberate and advysed speak- 
as to the other acts against leasing 
and slanderers lybelled upon, it was al- 
far the pannel. That these acts wera 
■ded and inno? ate by the foresaid sta- 
ihepariiament of Great Britain, in con- 
sseT the 18th Article of the treaty of 
whereby it was agreed. That the 
hieb concern publick right, policy and 
{■tesmeut (as the old Scots acts cor- 
ds) sight he made the same thn;ughout 
hsfe United Kingdome. And supposing 
IS Scots acts were still in force, which 
veil be admitted otf, for the reasons 
dl attcrwanis be more fully cx)ilaii)cd, 
' facts charged upon the pannel, are 
danderini; the king to his sulijects, nor 
fcts to ihe king, which is the descrip* 
r law gives (<f leafiu;^ makin;^, and 
y such slanderers d'j iucun- the peual- 
Btioned in these actd. 
is the sum of the defence, and therein 
Del humbly conceives he is miicli siip- 
by the great length to which tliis argu- 
drawn, in the pleadings and inforiua- 
B the other side in civil cases, which 
all be comprehended under the express 
of positive law ; there is place f(»r in- 
5 and conjecture, but it is the happiness 
constitution that such facts as are 
d are plainly and clearly forbid by 
notes, and therefore need little argu- 
• make them plainer. The law speaks 
H^ and if this is the case of our criminal 
I general, it is more particularly to he 
I, where the Uw concerns words said to 
ken, and requires that such words be di- 
i4 advysMlly emitted. 
iihcr this fact charged on the pannel be 
HL. XTII. ^ 



so or not, will appear from a more particular 
examination of the answers made to his de- 
fences in the method as they are set down in 
thepnrsne^ information. 

The pannel then in the first place having al» 
ledged, that he was in drink the time when h% 
is said to have spoke the words labelled ; the 
pursuer premises to the answer a general ob- 
servation, that crimes are aggravated or less- 
ned with respect to the quality of the persons 
against whom they are cumniittetl, and the ob- 
servation is certamly just, but then the law 
upon which the party offending is to be con- 
vict, mnst first make the fact a crime, and 
that is the poynt which the pursuer is to make 
out ; and here the pannel would not be under- 
stood, as if he meant that the fact charged 
against him was not an offence, but what hia 
concludes is, that it is not an offence falling 
under the description of tbe laws mentioned in 
the lybel, and even though it were, the de- 
fence of drunkenness is relevant totally to ex* 
elude the lybel, and nota%an alleviation only. 

For tho' as the pursuer observes, drun- 
kenness does not take off the fact, yet it 
takes off the greatest crimes as much ais 
fnry of fatuity, because such persons are 
incapable to consent or to adhibite a free act of 
the will, but there can be no doubt in this mat- 
ter if the natura of tbe libel is consideredp 
which is laid against the pannel upon a statute 
requiring malicious and advyscd speaking. 
And therefore it is, that our famous lawier sir 
George M'Kenzie, in his observations upon the 
act 'i, scss. pari. 1st Charles 3d, entitled, Act 
for Preservation of his Majestiu*s person, where 
the same \tcrds of pn^achingaud malicious and 
advysed speaking, wJKjrcby a pnrly expressctl 
cr declared his treasonable intentions in the 
matters by that law forbid is dticlared treason, 
Sci3's, that .such as wercdrnnh when tliey spoke 
those words, are not punishable by this act. 

lint tbe pursuer says, dnmkenness is not re« 
Icvantly proponed, because the nannel does not 
alledgc he was drunk to that degree, as to he 
deprived o\'\\is judij^enicnt and senses. 

It is answered, that the Defence nreds not be 
so qualified, because the fact objected oj^ainst 
him is malicious and advysed speaking, which 
any degree of drunkenness is sufUcieut to ex- 
clude, so as to save the defender from being 
convict upon the laws lybellcd upon. And the 
insinuation, that the paunel coulrl not be drunk, 
because he was ubio to go oU' when the city 
guards appeared, is i.ot concluding, unless 
the pursuer subsume, that every party who 
walks is not drunk, and is capable of deliberate 
I thinking and speaking, which the pannel cannot 
adniitt. 

The order nf the Defence and pleading 
leads the pannel in the next place to take notice 
of the Answer, to u hat was objected against 
'the defect of the ]>ursuer's lybel, in so far as 
it is founded upon the Brilish statute, w hich 
liears that no person shall be prosecute by 
vertue of that act for any words s[K)ken, unless 
the information of such words be giveu upoa 

C 



15] 



1 GEORGE L 



Trial of John Graham and otkerif 



oountry of England or councellon thereof, 
tendioif to the remembrance of ancieut grudjures, 
whereby hatred may be fof^tered, and misiike- 
ing raised between his majestie's subjects of 
this island, is made criminal under the name of 
leasing making. So that there can be noUiing 
more evident, than that the crime of leasing 
making consists in uttering false and scanda- 
lous speeches, tending to stirr up his majesties 
subjects thereby, to mislikeing, sedition, un- 
quietness, and to cast off their due obedience to 
tlieir kintr, to their peril and tinsel. 

2dlv, The facts 1y belled are such, for what 
speech or deed can shew more contempt to the 
majestie of the king, or what can more endan- 
ger his estate than the publickly owning the 
title of another, and wishing his happy restu- 
ration ? What can more stirr up the people 
against bis lawful authority, than the disputing 
ot his title? Or what can more clearly invite an 
unnatural invasion, whereby this country should 
be made the scene of blood, cruelty and vasta- - 
tion at the hands of people whose relipon di- 
vest them of all faith, mercy and pity, to those 
whom they falsely reckon hereticks, than the 
publick profession of a desire to have a declared 
enemy to our religion and our happy constitu- 
tion, upon which our laws and liberties depend, 
restored ? 

It scarce deserves mentioning what the de- 
fender so often observed. That the acts against 
leasinc^ making were odious, for so they were 
indeed, as all powers in the hands of enemies, 
or the hands of a government engaged by reli- 
gion and mistaken principles, against tlie inte- 
rest sacred and civil of the people, then indeed 
the acts of leasing making were strained. But 
since the happy llevoTution that grivance 
amongst many others has been removed. 
What was useful in the acts of leasing making, 
and indeeil all that concerns the present ques- 
tion, is preserved by the act 4th pari. 1703, the 
bitterness of the punishment is restrained, and 
80 the odioasness of the law taken off. Nor 
can these laws be said to be old and obsolete, 
which have been so lately under the considera- 
tion of the legislature and approven. 

To conclude then in the words of the for- 
cited 134 act of the 8th pari. Ja. 6th> tho' his 
majestie continues in love and clemencie to- 
wards all his good subjects, and most willingly 
seeks the safety and preservation of tbem all, 
and his servants in his name proceed with the 
same regret against the guilty, vet seeing the 
law and authority must be vindicated against 
open insults obstinately justified, there can be 
no doubt but the Court will sustain the lybel, 
and find that the drinking a health to king James 
the eight in the open streets with huzzas, and 
the drinking of the said health, or to bis 
happy resturation, relevant to make the defen- 
ders guilty of the crimes and according to laws 
libelled. 

This debate being a\ to Af r. Graham for 
whom compearance only was made, and Mr. 
Hogg the other defender having for himself 
«nv«d the btneata of tlM same 4mncei wludi 



the Court allowed, the tiOcd Advoc 
peated the same answers. 

Sic Subscribitur^ David Dalbti 

February ath^ 1715. 

Information for John Grahame, m 
James Grahame of Newtmm 

AGAINST 

His Majestie*8 Advocate. 

His Mafettie^t AdvocatehnM been pk 
raise and for liis higlmess interetit, to iai 
criminal process before the lords commii 
of justiciary, lybelling upon tfae*acts of ll 
liament of Scotland, made against I 
makers and slanderers ; but more cs^ 
upon the statute made in the parlisa 
Great Britain in the 6th year of tbehte 
intituled, '< Act for the Security of her J 
tie's Person and Government." WbfftJ 
amongst other tbinirs enacted, That' if ai 
son or persons, shall malicioualy and i 
by preaching, teaching or advyscdspc 
declare, maintain and amrm, that the pic 
prince of Wales, who now styles bimici 
of Great Britain, or kinf of Engtend I 
name of James the third, or king of 8i 
by the name of James the eight, hi 
right or title to the crown of these i 
every such person shall incurr the pel 
Praemunire. And subsuming that then 
guilty of these crimes, in so far as M 
to the health of king James the eigk 
to the happy resturation of the said I 
der, under the name of James the 
Which words, to the health of kinglH 
eight, and to the happy resturation d 
James the eight, he duf pronounce all 
huzza'd at each health, dancing at th 
time, and having hautboys playing. Ai 
eluding the pannel is guilty of tlie hn 
the said laws, and therefore ought to 
nished with the pains of law, aiid partii 
that he ought to be put out of his majeslt 
tection and his lands, tenements, goodi 
tells, or otiier moveables Ibrfaulted. 

It may appear even from the lybi 
whatever was done by the pannel tl 
therein mentioned, was the conseqaei 
debauch by too much drinkmg, and node 
act So that the pannel not remembris 
had passed, denyed the Ivbel ; and in 
fence, it was alledged. That hownvcr I 
charged upon him, was a very great li 
indecency, yet he could not ior il bn < 
u|ion the laws generally or speciaUj M 
in the libel. 

For Imo. As to the act ainde is Nm 
ment of Great Britain, entitokd,- ^MM 
Security of her Miyestie'i ppnBB.«Mi 
ment," tbe necessary wm 
cuting any person np^ 
spoken, were not in lb 
been no infonBti* 
oath, I0opa« 



** 



^ dHMUHg ike Praentla*s Heabh. 



A. D. 1715. 



[18 



?be words nid to be spoken by the 
to not fidl uodcr the description of that 
leh enacts, That if any person shall 
■ly and directly, by advysed speaking^, 
vuntain and affirm, that the pretcod- 
Hs of Wales, who now styles himself 
I Gmt Britain, or kin^ of Enfi^Iand by the 
tf Jioies the 3d, or kmg of Scotland by 
■e of James the 8, hath any right or 
(ihe crown of these realms, shall incurr 
Mkf of PrsBmunire. And the drinking 
I Jtmes Bih's health, and the drinking 
■fpy restoration, ii neither a malicious 
net declaration, maintainance or affirma- 
fkii right and title to the crown of Great 
lyisd the l^hel does not bear, that these 
vera maliciously spoken, or that the 
I id thereby declare and maintain the 
M prince of Wales had any riffbt. 
i Tbe act reqnires, that the words where- 
liifbt in the Pretender is affirmed, be 
rif ipoke. But the pursuer has laid no 
blNB in hb lybel, from whence it might 
M, that these words were advysedly 
I m the contrary, the pannel is brought 
ikiw, huzzaing, dancing on the streets 
b ttt, all which circumstances are in- 
tBt wiih deliberate and advysed speak- 

1 ■ to the other acts against leasing 
■isd ibnderers ly belled upon, it was al- 
i ftr the pannel. That these acts were 
WM and innof ate by the foresaid sta- 
'ikptriiaroent of Great Britain, in con- 
Mi «f the 18th Article of the treaty of 
■i vbereby it was agreed, That the 
'*Ucli concern nublick right, policy and 
' fwnoieiit (as the old Scots acts cer- 
7di)Bi^it be made the same tlirciigliout 
"^Uaited Kingdome. And supposing 
IfcffipDU acts were still in I'oroe, which 
' 'cit be admitted otT, for the reasons 
UH afterwards be more fully ex|)laliied, 
^ ficts diarged upon the pannel, are 
'|diDderin<; tlie king to his suhjects, nor 
^ects to the king, which is the dcscrip* 
ir law gives oV leafing making, and 
9 lurh slanderers d'j iuciirr the peual- 
ntionrd in these acts. 
>ii Ibe sum of the defence, and therein 
Hifl bambly conceives he is much sup- 
by the great length to which this argu- 
I drawn, in the pleadings and informa- 
a the other side in civil cases, which 
ill be comprehended under the express 
of positife law ; there is place fur in- 
I ind conjecture, but it is the happiness 
coostitutioo that such facts as are 
fl wn plainlv and clearly forbid by 
Mhl and therrfhre need little argtt-> 
I Mt Ihem plainer. The law incSkt 
iriUi«tfiecMt«rmir '-' -' 




■0 or not, will appear from a more particular 
examination of the answers made to his de- 
fences in the method as they are set down in 
thepursne^ information. 

The pannel then in the first place baring al» 
ledged, that he was in drink the time when ha 
is said to have spoke the words labelled ; the 
pursuer premises to the answer a general ob- 
servation, that crimes are aggravateil or less« 
ned with respect to the quality of the persona 
against whom they are cumniittetl, and the ob- 
servation is certamly just, but then the law 
upon which the party offi:nding is to be con- 
vict, must first make the fact a crime, and 
that is the poynt which the pursuer is to make 
out ; and here the pannel would not be under* 
stood, as if he meant that tlie fact charged 
against him was not an ofll'uce, but ^vhut he 
concludes is, that it is not an offence falling 
under the description of the laws mentioned in 
the lybel, and even though it were, the de- 
fence of drunkenness is relevant totally to ex- 
clude the lybel, and nota%an alleviation only. 

For tho' as the pursuer observes, drun- 
kenness does not take off the fact, yet it 
takes off the greatest crimes as much as 
fury of fatuity, because such persons are 
incapable to consent or to adiiibite a free aet af 
the will, but there can be no doubt in this mft- 
ter if the nature of the libel is conridcrcd^ 
which is laid against the pannel upon a 
requiring malicious and advysed ip 
And therefore it is, that oar fiunous k 
George M*Kenzic, in his observations 
act 2, scss. pari. 1st Charles 3d 
for Preservation of his Majestic^s perm v**^ 
the same ucrds of preaching and malidfV'' 
advysed speaking, wlitirehy a p?rtj ajhw*" 
or declared his treasonable intendnv >" ^ 
matters by that law forbid is dedand m*" 
says, that such as were dnink vba fb^ ^"^ 
those words, are not punishable Hy cliif «• 

lint the pursuer says, drunkaii^' '* "" 
Icvautly proponed, because •^ ■■"■*' '^ 
a!ledgc he was drunk to 
deprived of his judgemeot 

it is answered, that tbe ' 
so qualified, because 
him is malicious and 
any degree of dm 
elude, 80 as to 
convict upon tbe 
insinuation, that 
because he 





int 




X J 




le 

a 



ip. 

osi- 

^, or 
said, 



m 



1 GEORGE I. 



Trial of John Graham and otheri. 



going debile thereniwD, Tlicy find the uiJ 

Kbtirili oreachof them, thnrdriokiugtrf* king 
mes tlie ei(;ht hia health, ordrinking tokicg 
James the eight his hnppy lestaratimi, at lite 
time labelled, tetmntim, rt-IeraDt to infcrr fen 
aiUtrwy pimilbment. And repel] the defencti 
nroponed lor the said uaaDells against the said 
lybet as mtrictnl, and remitt tbe pannells and 
lybell a* fonnd relevant to the knowledge of an 
JJiRze. 

Sic Subieribilur, Ad. Cockbdrkb. I. P. D. 

Sir DaTid Dalrymple of Hailet, hu mqjectie'g 
•ilTOCtt for his majeatie's interest. Judicially re- 
BIricts lui lybel and caDclusiao thereof 1« an 
ai-bhruy paoishmeoL 

Sk &ibttribitur, Datid Dalryhpia 

Diet coDlianed till next day at 9 o'clock. 
FcinMf^ll, 1T15. 

John Grahame, AUlander Craa/urd, and 
Mr. IVilliam Hog^, inilicted and accuied at th-e 
iottaiice of bis roajestie's adrocaie/or his high- 
Ma' interest ut in diebut pmcedenlibui. 

Sir William Hensies, of Glatdstaines. 

Oeorge lind, of Georgie. 

Thomas Faicbolm, of Greenhill. 

FUrick M'Dowal, tnercfasnt in Edinbur^'b. 

John Bell, merchant there, 

Jehu Thomion, mercbaDt in EiUnborgh, 

John Colqaboou, of Tilliebewn. j 

John Martiue, of Litlleeires. 

Alexander Waddel of Holliubum. 

James KI'Millan, merchant in Edinburgh. 

Patrick Gibson, merchant in Edinburgh. 

Akxaoder Clark, of Glaadarock. 

■ Priogle, of Symin^un. 

John HultoD, tueccbant m Edinburgh. 

John Lesdy, merchant there. 



tbem repeat the ivords, but sat Air' GrahM 
putthecsf ti) bi* head, and dnnkoulthedria 
Depones, that he nj no wore peraon* dancii 
but the paoDelU, but that tjiere were oths 
looking on . Cotus tcienti* ptiUt. And thia 
the troth aa he shall answer to God, and i 
pones he cannot write. 
Sic SttbKribitur, An, Cocxbcbne, I. P.] 

jl/emn^cr iror^ Bouldier in IhecitjgBM 
of Edinburgh, aged (wcuty Etvea yevt, i 
thereby, marned, solemnly Eworn, purged m 
inteiTugate ut lupra. Depones, That upon d 
sixteenth day of December last, betwixt fti 
and five a'clock in tbe mnrniDg, he did sea M 
Grahame and Hr. Hogg, two of the paonell 
dancing niion tbe street wiih Ur. Craw^ 
-■ ' ■ehau ■ ■ "" 



rhyle I 



Her Majestie's Advocat and solicitor for Pro- 
bation adduced Mr. Crawford's Confeaaion. 
Ac also adduced the witnesses atler depODrng, 

David Smith, indwdler in Edinburgh, and 
chair-carrier there, aged fourly thrtc .years 
or thereby, narried, solemaly Bwom, purged 
of malice, nreJuJicr, and partial council, exa- 
mined and interrogate, depones, That the 
month of December last, in a morning hetnixt 
four nod fire a'clock, he did see tbe psnnells 
Hr. Grahame and Mr. H<^g by the street, 
dancing to the hautboys, ann when they bad 
donedancing, the deponent saw a woman come 
out of a cellar with a stonp, and saw Mr. Gia- 
hame take the stoup and a«ap, and fill a drink, 
and heard him utter tbeae worda, Here is the 
bing'a health, and some other of the company 
Mked what king t But the deponent cannot tie 
poaitiveby whom, king Jameslhe eights' imjib. 
AndbdngiiitanogmleiforiMtbeff^Hr. Gra- 
fcuH fli Hr. H<nr pat tbe cap M tbeir beads, 



itboys were iilnying, and did si 
Mr' Crawford with a dish in bis hand, M 
Cranfnrd say.Tbia is the kiug's health, and U 
Grahame aiuwered, God damn y tu, what king 
and heard Mr. Crawfurd reply, KiogJomeaU 
eight, and saw lilm drink the liquor in tfc 
dish, but did not bear Mr. Grahatne name tl 
heahb of king James the eight, neither bear 
any of the pannells name ahcaltl) tothehappi 
resturation of king James the eight. And m 
mediately tbe deponent went away and left tb 
company. Causa tcicnlia, the deponent be 
ingupon tbe guard thatnii^bl, happened to b 
on tbe street, and heiird end suw as he baa do 
poned. And tliii is tbe truth as he shall ut 
Hwer to God. And depones he cannot wriia 
And fnrder depones that he saw Mr. Graham 
have tbe atoup in his band, and fill tlie drink 
in tbe dish, which Mr. Crawfurd had in hii 
l»nd. Aud this is also llie truth as he sfaali 
luiBtrer to God. 

•Sic Snburibitur, Gilb. Eliot. 

Jamet Malcolm, souldier in the city guards 
aged fourty four years, or thereby, manied, so- 
lemnly sworn, pucgcd of malice and prejudice, 
interrogate, depones. That some lime in ibl 
month of December hist, about tour or fin 
a'clock in the morning, The deponent saw tbi 
three pannelti steniling on tbe high street ol 
lidinburgli, near the Trnn, and the said psoneUi 
had a cbopine stoup snd a cap amongst tbem, 
and the deponent heard Mr. GriLhante thepan- 
i^et drinkto the health of king James tbe ei^ht, 
t'Ul cannot particularly Icll whether any ol the 



had uttered Ibese words, he pointed 
It Mr. Grahame. Caum tciealitr, the depo« 
:ieot was on the guard tbsl night, nnd was gi^ 
ng down with a watch coat to one of nil 
jiimotades that stood centry near the pUca 
.vhere the pannells were. And this is the tratk 
la he shall answer to God. 

Sic Subtcribilur, 3 ahem Malcolm. 
Ja. H'Kcnhk, 

.itiKimCBilUaw,aeiieantintbecityguuia 
aged fifty yean, or tbaraby, Bairied, aoMBoty 



*] 



Trial of Major OnSt/m 



A. D. 1726. 



[SO 



mn, jpvgf^ and iDtei/vgate, de|Km8, that be- 

iviit bar mod fire in the morDing of some 

ter in December last, the deponent was 

olM by a oeolioell in the flfuard dour to go 

^iwato'Miliis sc|uare, where there were some 

padcnKB drinking to the health of kin^ James 

the cishi, lod aat the de[ionetit waa at the ^lard 

ter, ae beanl some perrons crying, To the 

VfiU, »* the iiappy resturation, and immed- 

^klrfr tbe deponent went in to bring out a 

fvir'sf the foiurd with their arms, and with 

itifirty went towanis Milns square, and the 

If fledy mnd the deponent and the party 

"them, aud seized the pannclls in a stair. 

Kienti^ pqtet. And this is the truth as 

hi Ml answer to God. 

Sk Sutneribiiurf Andrew Castlelaw. 

\V. Calderwood. 

1W AfSTze ordained to enclose and return 
thsicxdict next day at 9 o'clock. 

February 13,1715. 

£lffBJ|* 

JUa Crahamcj Alexander Craufurd^ and 
k.lTU/iaia Hoeg, 

Ik sud day the persons who past upon the 
I^Kof the said pannells returned their Ver- 
ity is presence of the said lords, whereof the 
Wfettom, 

Eoc^BURCH, February 11, 17 J 5. 

1Wabo\-e Aaayse ha? iuf; inclosed, did choyse 
arl^iliiaoi Meozies, of Glaidstaius, to br their 
dasedkN-, and Thomas Fairholm, of Grren- 
hAI, tbeir clerk. And hnring considered the 
i^luihe i:istuncc of Mr Oavid I)nli-vii)|ilr, 
iUula.his innj^stics advocatfor liis liij^hness 
>*^-< s^ainst Jolisi (^r.iliamr, Alcxamier 
Lnz:jx. lad Mr. Willi-.m Ilopir. pamielis, 
<M Lf'Ti: Janice Clerk uud Conniiisstonri's of 
ivjfvii.v, their intpiloqiiitor thtT^'in, and de- 
;««J:oc) of tiiu witnesses adduced a<rainst the 



said John Grahame and Mr. William Hogg 
with the judicial Confession emitted judiciaTly 
by Alexander Craufiird, all in one voice find it 
not proven, that John Grahame or Mr. William 
Ho^rg, pannelU, did drink king James the eight 
his health, nor did drink to kin:*: James the eight 
his happy restoration. And find the Ivbel 

tiroren against Alexander Crawfurd, pannel, by 
lis judicial Confession. In witness whereof 
thir presents are subscribed by our said chaa- 
cellour and clerk. 
Sic Subscribitur^ W. Menzies, Chancellor. 

T. Fairiiolme, Cleric. 

After op|>ening and reading of which Vjerdiel 
of Assyze, the Lords Justice Clerk and Com- 
missioners of Justiciary, in respect whereofp 
assoilzie the said John Grahame and Mr. Wil- 
liam Hogg, pannells, and dismiss them from 
the barr. 

Sic Subscribitur^ Ao. Cockburne, T. P. D. 

February 31, 1715, 

Intran' 

Alexander Crawfurd yoongcr, of Manual* 
milne. 

The liOrds Justice Clerk and CommissioDerf 
of Justiciary, havincc considered the Verdict of 
Assyse returned upon the 12th day of Febmarr 
instant, against the said Alexander Crawfurd, 
pannel ; thev in restpecl thereof, by the month 
of Charles Riuross, macer of court, fy ne and 
amerciate the said Alexander Crawford, in the 
sum of 5(;/. sterlinsr, to be payed to his majes- 
tie*s rcecivor general for his majestic's use, be- 
twixt and the 1st day of July next to come» 
and ordain him t(i l)e cLrriud to prison until 
he G^ive hoiid and sunificnt caution that hft 
shall nir.kf! ) ayment of the said sum in manner 
to r« a i d . — Sic Su hsrribi i u r^ 

A I). Coi;KRi;i{N. W. Calderwood. 

Cxii.n. ]-'.i.i(>T. J. Hamilton. 

Ja. 31* KlNZIC. I). fc)RMCINE. 



*33. The Trial of Major John Oveby,* at the Sessions-House in 
the Old-lJailey, before the Right Hon. Sir Francis Forbes, 
kut. Lord-Mayor of London, Mr. IJaron Hale, Sir William 
Thompson, knt. Recorder of London, and others his Majesty's 
Justices, for the Murder of Wm. Gower, esq. : V> Gkorof. L 
A. D. 172G. 



John Oneby, of St. Martin's in the Fields, 
est. was iu'Jicted, for that he, oti the 'Jnd day 
if Ft^rruary, IJ C*>o. at the said |farish, felo- 
■hhIv, iJluntarily, and ok' his malice fore- 
ihsurht, nmlc an ass.-nilt upon one William 



, esq. and that he the said John Oneli 
*ttk a sword which lie then and there he 



* See « Hum. 766. ft Lord lUym. 1485. 1 

.n. 



drawn in his riGflit hand, the said Willlara 
Cj'iwer in and upon the left part of his belly, 
near the navel, Icloniously, vulniitarily, and oi 
his malice forcthonr^flit, fhd strike and thrust, 
^i?in{7 tiic said ^Villiam (iouer, then and there, 
with the said dniwn swonl, in and upon his 
said left part of his helly. near the navel, a mor- 
tal wotind of the lin^tli of one inch and a half, 
and of the depth ol' len inches ; of which mor- 
tal wound the said William Goner lived io » 



313 



IS GEORGE I. 



TruU of Major Onehf, 



I 



langpiishiiig condition, from the 2nd day of Fe- 
bruary to the 3rd day of the said February ; 
on which 3rd day of February, the said Wil- 
liam Gower, at tlie parish aforesaid, of the said 
mortal wound did die ; and that the said John 
Oneby, the said William Gowcr feloniously, 
▼oluntarily, and of his malice forethought, did 
kill and murder.'* 

He was a second time hidicted, on the coro- 
ner's inquisition, for the said murder. 

Thomas Hnwkint. On the 2nd of February, 
between nine and ten at night, Mr. Blunt, the 
deceased, the prisoner and myself, went from 
Will's coffee- house to the Castle tavern in 
Dniry-laiie, where, in about half an hour, Mr. 
Rich came to us. After the fourth bottle, the 
prisoner called for a box and dice ; the drawer 
said, they had none in the house; "Why 
then," says the prisoner, ** bring the pepper- 
box." The drawer brought it, and dice were 
laid upon the table : but I don't know by whom. 
We played low, nobody setting abo?e half a 
guinea, and yet I had no great inclination to 
game, and especially to set the prisoner ; and 
therefore, aAer a trifling loss I declined the 
play. The prisoner appeared di«|^usted at it, 
and aHked me why I refused ? 1 told him I 
should use m^ own pleasure, whether it was 
agreeable to his h umour or not. The rest con - 
tinued playing. The deceased lost SOf. Mr. 
Rich said, "Who will set me three half 
crowns?" Upon which the deceased took 
something out of his pocket, and laid it on the 
table, but concealed it with bis hand, and said, 
" I'll set ye three pieces ;" and then taking his 
hand avray, we saw three half- pence. This 
was not offered to the prisoner ; but he appear- 
ed to be much affronted. He said, " That is 
▼ery impertinent to set three half- pence." The 
deceased said, " What do you mean by imper- 
tinent 1*" And the prisoner replied, " You are 
an impertinent puppy ;" and presently snatch- 
ed up a bottle, and threw it at the deceased's 
bead, and it beat some i»owder out of his wig, 
but did him no hurt. Ue, in return, tossed a 
glass or a candlestick, I can't tell which, at the 
prisoner; but it did not reach him. They 
both rose up together, and went to their swords, 
which hung up in the room. The deceased 
being quickest, got his sword first, and drew it, 
and stood still in a posture of defence, at a good 
distance from the prisoner, who was advanc- 
ing, and was drawing his sword to meet him ; 
but Mr. Rich stepfied in between, and pre- 
vented him. Then the deceased threw away 
his sword, and they all sat down again, and 
drank for about half an hour ; when the de- 
ceased offering his h&nd to the prisoner, said, 
" We have hsM words, mi^or, and you was the 
aggressor; but let us agree." The prisoner 
answered, "No, damn ye! I'll have your 
Mood I" And then tummg to me, he said, 
" Hawkins, yoa was the occasion of this." 
•• Why then,^* says I, " if ye have done with 
bim, and have any thing to say to me, I am 
your inaOf and I'll see yon out.** " No,^ says 



be, " I have another chap first." In ala 
half an hour after this, which was near tk 
in the morning, the company broke op. I it 
out of the room first, and Mr. Blunt, and '. 
Rich were next after me. When I casBe 
the street it rained, and I run under a p* 
house, where I stood a little while ; bafc 
having a chair ready, and seeing none of" 
company come out, I returned to the rc3 
where Tlound the deccasetl wounded, and E 
ing on a chnir in a languishing c^mdition. 
died the next inoniiiig. 1 knew him intiaa 
ly, and I don't believe that tliere was a swfl 
teniftered man in the world. 

John Rich. I, the prisoner, the deoea 
and some others, went together te see the 
tragedy of Hecuba ; we sa^ io the pit. 
deceased and the prisoner appeared to be ^ 
friends all the time of the p)ay ; and as 80« 
it was done I left them ; but met them ib 
at the Castle tavern in about half an hour, 
prisoner and I called for a box and dice ; im 
not being to be had, he called for a pei}pcr— 
and it was brought ; I saw dice lying upoK 
table, but don't know how they came there 
said. Let us play low. Some words pssK 
tween the prisoner and Mr. Hawkins. K 
down three half crowns. The major set 
I threw. Seven was the main, and sis 
chance. The deceased put down three J 
pence ajgfainst me, and said. Here, I'll sei 
three pieces. The prisoner damned liim, 
called him an impertinent puppy. Sir, i 
the deceased, I am not afraid ot ye, and be I 
calls me a puppy is a scoundrel. At Ife 
words, the prisoner threw a bottle at bia. 
brushed his wig as it passeil, and he in lili 
tossed a glass. They both gut up loffelfa 
but the deceased being nimblest, jumped on 
table, and reached his sw(»i d first ; and tl 
slopping down, he drew, and stood ready to 
feud himself, but made no offer to push, 
the mean time, the prisoner took down 
sword and cane, which hung t«>gether; 
there lieing the table and a chair bt-tween th 
he came round the table, and was going to 
gage with tlie deceased ; but I stepped betn 
them, told the prisoner, who was drawing 
sword, if he made a longe, it must be thro 
my body, which, as I was unarmed, wouh 
wdful luunler. The deceased then threw a 
his sword, and they lioth sat down again. ' 
deceased put his hand forward, and said, Cc 
major, let us be reconciled, words in beat i 
be forgot and forgiven. The prisoner ans^ 
ed, God damn you, you lie — I'll have i 
blood, by God! And then, turning to*^ 
Hawkins, be said. This is all along of ^ 
Mr. Hawkins answei'cd. Then I am i 
man; and the prisoner replied, No, 1 I 
another chap to deal with first. When w 
got up to go, the prisoner hung his great i 
coat upon his shoulderS| and I think butli 
it in one or two places. Mr. Hawbios i 
out first, Mr. Blunt next, the deceased folk 
biui ; I, the deceased, and tbe pr is onw c 
last : but he was hardly out of the rosniy « 



ySr <X* MHrier 'tfWSBiuk Gmtr, 



iuD. 1786. 



t» 



I li lh« tocMd, Htrk ye^ yoaafr 
■ift vOTi wi* y«^ The deoettM 
lAt ^mj loth re-cnlHcd the room. 
r wi wiwrtiitoly tlittt flat IbcNml, 
| rf nw iJ i ^iBd»kwrfitiBp €Q the 
■blfWMed Wis mede Irf tbeBri- 
llnffaTeiyheftTyiDiui. llr.Biiiiit 
■H Mck, and endm?eured to vet in ; 
llHiMdily epea the door; hot the 
pnfjto our oMitlMice, tre made eo 
Uk. Bhmc lliet, and 1 deae behind 
kprnwer was then next to the door, 
fcfailh hb aword drawn in his right 
tflBalsf it heinff towards the deceas- 
akMd 1^ the ahoaUer with his left 
liUithedeoesard had then no aword 
ai,ailsitt I saw none; and 1 soon 
ibftsai it dose to the wainseot, be- 
ftUtafsfthegreatond table. It was 
rifnaqr four or fife inciies from the 
H» diemed cloosd with the prisoner ; 
khaauusr, as if he rather fell to- 
bthnngh wcaknets, than otherwise^ 
IImhm think the woond was jpvett 
pee came in. We pat him mtoa 
itm far a smgeon. As I lidd np 
hm part them, I felt a littie prielc 
ipeiatybj the priaoner'a aword; bat 
hws done aoeidentally. Mr. Blant 
Miaw dapped his hand on bn bdlj. 
hi vaidangmiisly wounded ; bat I 
■t hy wbtt mesne. I told the pri- 
■iws csaae out of the room* that I 
i ha had kUled the deoeaatd ; No, 
■j^ have done it, if I wouM ; bat 
^fhghted him. But suppose I had 
^ 1 know what I «lo in those afl&irs ; 
I killed him to-night, in the heat of 
ihoald have had the law on my side ; 
d done it at any other time, it would 
d like a set meetini|^, and not a ren- 
I advised him, however, to make off, 
the worst. 1 asked the deceased on 
lid, if he received the wound fairly P 
red, faintly, «* I think I did— but~I 
r— what might have happened— if 
ioi— come in." 

Blunt, From the play we went to 
thence to the Castle, where we were 
f and triendly, till the dice were 
We played low, but Mr. Hawkins 
led ; upon which the prisoner said 
IThy do you come into company, 
won't do aA others do ? Mr. Uaw- 
ned. Don't trouble yourself about 
» as I please. The deceased set 
-pence: the prisoner said it was 
ipertiueut; and some other words 
' flung a flask at the deceased, who 
OKd a glass or a candlestick. They 
tworda, but were prevented from en- 
4 so they sat down again ; the de- 
lod hia hand to be reconciled, upon 
priMoer save him very ill language, 
m wottlu have his lAood. As this 
dve that their quarrel would 
IIm nest day, 1 invited the 



oompany to dme with aie,la hopcs.lo brioff oa 
n recoodfiathm, and nrsvent futnre niienief. 
The prisoner answersd my ofler with,- No, God 
damn ye, I'll dine with none of ye. Are ye 
ngry, £Kr, says I, Bare ye any thing to any 
tome r Or me? says Mr. Hansins. Or ooef 
saya Mr. Rieh. No^ he had nothhtf to say to 
anyoffls. This was aboat two or three in the 
morning. And after we were all enme oat of 
the room, I heard the prisoner call the deocaied 
book ; and they were no aooner got into the 
room agam, but the door waa flimg to, with 
grsat nolcoee, and I heard the mshing of 
swordsi When I got in, which was with maoh 
dlffienhy, I did not see that the deeeaaed had 
any sword in lus hand, but he waa sinking forr 
ward ; and I, by gomg to assist him, received 
a wound in my belly, which I was afraid wii 
mortal ; bat 1 cannot tril how, or by whom it 
was given, though I tbonk it conld not be by th« 
deonsed, beoa^ he had no sword ; and be- 
sklesy vraa not in a eonditioii to do it. A sor* 
geon being in the hoose, gave me his imm9- 
diate asristanc^ 

Mr, SAow, the snrgeon'. I. fhnnd the da> 
oiised bngnishmg in a chahr. His intestines 
nppsnred attheweand, and by being esposed 
to the dr began to mortify. When 1 had 
dreised him 1 sent him home ; bat the neil 
day I foand a second mntnre of the mtestines. 
Hediedsoon aUter; and thai woimd was the 
cnnse of his death. 

Prnsmr. A wager was Idd bdwixt Mr. 
Bioh and Mr. Blunt, concemmg Mr. Mills*i 
actittg the part of Caesar m the day of Jalios 
CsBsar, and it waa kist by Mr. Blunt. After 
this a box and dice were called for, but not by 
me; the drawer said he had dice, but no box ; 
upon which somebody edied for a pepper-box. 
1 flung a main at 12i. and passed it about. 
Mr. Hawkins refusing, I said, I thought there 
was as good fellowship in a little play, as in al- 
together drinking : then we played for half- a- 
crown or Ss. ; and when the box came round 
again, the rest likewise refused to play ; at 
last, the deceased offered to set three half- 
pence, which 1 said was very impertinent He 
called me rascal ; ** You impertinent puppy," 
says I, ^' what do you mean by that ?" U|)on 
which, he threw a glass at my bead, and drew 
upon me. 1 told him, be acted basely in draw* 
log upon me, when it was he that gave the 
affront. Afler this i put on my great coat, 
and was croing out. Mr. Hawkins had slipt 
away, ana the rest being gone out of the room,* 
Uie deceased pushed the door to, and drew upon 
me, and wounded roe in the knee, and cut my 
finffers. I parried and closed with him ; he 
endeavoured to stab me in the back ; at which 
time Mr. Blunt came iu, and received a wound 
in his belly, which must have been by the de- 
ceased's sword. 

John Barnat the drawer. I threw the pri- 
soner's great coat over his shoulders, as he waa 
going out. Mr. Hawkins came out first, and 
asked if his chair was at the door ? I said, Yes. 
Mr. Blunt followed, and I went down to unbar 

1> 



S5] 



12 GEORGE I. 



Trial of Mtgar Oneig, 



the door ; tbc rest of 4he company not eomingf, 
I weut baokimd met Mr. Riob ; Kebkl me open 
the door ; I thou«^t he meant the street-door, 
and was turnings that way again ; but be airore 
at me, and told me the other door : I opened 
it, and went in 6r8t, and the deceaied and the 
prisoner were both with their swords m tbeir 
tiaudH, pointing towards each other. The de- 
cessetl closed with the prisoner in a manner as 
if he was rather falling' than pushing ; and the 
prisoner with his led hand bad hold of the de- 
creased, who, as soon as we parted them, was 
BO weak that he could not stand. I did not see 
him bleeding when I came into the room, 
though I cried out to the prisoner, For God's 
sake what are ye doing? 

Pritoner. uid not yon see the deceased 
ofier to stab me in the -back ?~-jBariief. No. 

Mr. Burdet^ a surgeon. The next day in 
the evening, the prisoner sent a coach to my 
house with a letter for me, intbrming me that be 
had been wounded in a rencounter, and desiring 
me to come to him. I went, and found him in 
bed at the house of Mrs. Gardiner, in Dean- 
atreet, near Red-Lion-sqnare, where he had 
concealed himself. He had one wonnd beloir 
liis knee an inch and half long, another on his 
buttock, two of his fingers were cut in the first 
Joint, -and he shewed me three or four holes in 
his breeches ; but none of his wounds were 
above a quarter of an inch deep, and that in liia 
leg had but just raised the skin. 

Mrs. Ganiiuer, The prisoner came to my 
house about two o'clock in the morning: he 
was bloo<ly , and upon searching him, I foood a 
wound in his buttock as deep as my (inger, and 
I dressed it for him. 

Court, The evidence is |)lain, that the pri- 
soner cave the first provocation ; and it is not 
denied, that he afterwards killed the deceased. 
The question is, Whether from the time the 
prisoner threw the bottle^ to the time the de- 
ceased received the wound, there was any re- 
conciliation P If there wai nutylthink it can 
be no less than murder. 

The jury found there was no reconciliation ; 
but not bemg satisfied as to the murder, they 
agreed npon a special verdict. 

The counsel on both sides attending, they 
stated the principal points of the evidence for 
the consideration of the judges. 

Whattlic prisoner's counsel di^ewup, was 
lo this efiect : 

*< We fiud that the prisoner, the deceased, 
and three more wet at the tavern, where they 
all appeared very irieuflly. — A box and dice 
wefe called for, — they played some time toge- 
ther, till Mr. Rich said, W ho will set me throe 
half-crowns?— The deceased put down three 
halfpence, and said, I'll set ye three pieces.— 
The prisoner said^ That's impertinent— 4he 
deceased answered, He that says I am imper- 
tinent, is a TasGal.^rhe prisoner threw a 
bottle, and the decessed threw a glass.— They 
both got op, and took tbeir swords ; but one of 
the company stepped in, and prevented their 
tngagingw— They tat dvwo agam to drioki— > 



about an boor, and thao the ^ 
broke ap. — The prisoner pot an his g 
—-They all went out of tne room. — 
soner and the deceased returned, the 
abut, and the dashing of swords waj 

The counsel for the king stated the 
to the following purpose : 

" We find, that on the Sd of Febr 
jirisoner^ the deceased, and three otfa 
in company at the Castle- tavern, and < 
in a peaceable manner for aboot two 
The prisoner then called for a box i 
but none beine to be had, he callei 
pepper-box, which was brought* — £ 
found upon the table $ — they played a 
—Mr. Uioh asked, who would set fa 
half-crowns P The deceased iaajocu 
ner laid down three half- pence, a 
Ihere's three pieces— the prisoner ca 
an impertinent pappy, and threw a 
him, which missed lum, but brushed 
-^Tbe deceased tossed a glass or candl 
the prisoner, which did not hit him 
both rose up, and took their swords ; 
prevented mm fighting.— They si 
a^in.— The deonsed wered to be 
with the prisoner ; but the prisoner a 
No, Gad damn ye! I'll have your li 
God ! — ^In about an hour after this, t 
pany all went out of the room ; but 
aoner called to the deceased, and said, 
gentleman, a word with ye.— They 
turned into the room,— the door was i 
violence, and the claabing of swords w 
—We fiud that iram the time that tl 
was flang, to tbc time of the breaking 
company, there was no wconciliation. 

Tliese two ron^h drauj«hts being o 
and some alterations bemg made, al 
drawn op, which was agrwd to and a 
the jury, and was to this tenor. 

Spscul Verdict. 

« That u|M>n the Sd day of Fcbmai 
the prisoner and the deceased were 
pany, together with John Rich, ThoEfl 
Kins and Michael Blunt, in a roon 
Castle •tavern in Dmry-lane, in the c 
Middlesex, in a friendly manner. 1 
they had continued thus for two hours, 
dice were called for ; the drawer 6ai< 
dice but no box ; and thereupon the 
bid the drawer bring the pepper-box, ^ 
immediately did : and tnen the com 
gan to phiy at hazard ; and after 1 
played some time, the said Rich askei 
one would set him three halt^owns P 
upon the deceased in a jocular nsa; 
down three halfpenny pieces, and the 
the said Rich, 1 have set you three pii 
the prisoner at the same time set the s 
three half-crowns, which the said R 
and immediately, after the prisoner in 
manner, tnmcd about to the deceased, 
It was an inpartinent thing to aet ha 
and thai Iho daoeasad ww an 



Jlr4(rJIMb<^«HU» Omt. 



Araint. 



t» 



j^lW «>(lamir ; to which the dcFeased 

M WborriT caHe^ bim su ivns a 

Tta lhrrru[i>)n lh«- saii) .luhn Oni?l>y 

IlkNdr, Bnd wilh grrat furc« llirpv it 

Mfcf ^rilhelmDfliGowEr;' which 

■■M hit the wid Gnxrr, but brushed 

llfr.uit pneaei by hi* huid, anil heal 

Midi: pnvitrr; whereapon tlie de- 

^^diiW; sftrr iMsed ii CHwIlexticfc oi 

^1 |int(hcl' JnhBnnirm Olicbj,* hut 

Hi biw niib Ihe same : upan which 

Bnl ud lb« [insoner both rose up to 

^(■Mdt, itiiicb iben htmg tiji in (be 

Mlht dcceaied itrpw hit swoni, but 

nr MI prevtnlF't' frnm dnwng hit 

■fMji ; and Ibe tlpcinfiHl thereupon 

tf hk iword, and the compuiy iM«r< 

ItjrNtdDHnRcniTiror Ihe spare of n 

lilUlheFiEpirittinD oF an hour, lh« 

■M to Ihe priMnier, We have had b«t 

Ijw i»i* ibe aegremor ; but I think 

■titorer; and bt ihesanie time of- 

lad Ktlbeiaid John ODcby, lOTrhrdi 

ka Oathv nittwerEd, M", damn you, 

t t»Hir bitwd. They furtlirr Bod, 

WtIs the rtrkoniii^; was paid by Iha 

fee pnioDer, Hid), Hawkins and 

ll all the company, except the pri' 

iMit n( the room ti> g<i hume ; and 

Teiuainiiig alotie in the room, called 

■Mh>I in these words, Young tna 

K I have somettiin^ to say tu yoi 

kdie deceased rduraedinto ih* ruoi 

Mnlely the door was Ifltmg (u at 

Mvcfty the rest of the company we 

rvrf then B dstliinr of swords n 

■Ifce nrituner, with Tiii sword, g»- 

■Md tne mortal wound meDtinncJ 

tamt, of which he died the next day. 

ttm tml, riwt at Ihe femkbig up of 



MaaGglit wmwdi in (heenngement; 
tta oeeeiacd bong atked, upon hii 



IMUldi 



did. llial Ann tin time of 



M iba adtioe of tbs Cmrt, ai 

womtt hting carried Itack to Newgate, 
vaa; M7> "or about a twrirs-motiih, 
riMMOD, •sdMgadb»ooiiMMdimH 
■i M tha ftDascMtnr bad tahm oa 
via hta^Bg m the kaariiig «f the 
^Jo, ho fraw prett* coiiHMit tt 
r4mmm^ti imm»amer, and ftad 
tmmn *• Cnart of Kii^a-beach for 
■k ta ha laada liir arnior the tpe- 
«Mbi>lbeOaM; wliwhltcioff or- 
etMormi frm Htgt ^ 



Bapoft^ Ml. 9, p. 



M#lb« Mlaaw bilMsl *• lai, il WW «■* 
kCmm&ui, die Court befaifarMijiint Hut fl 
oonM BOt ha aada ■ Cu t i kim in hia a liaoaea | 
■i#J»nkM TavBhWOae, Y, it <MU arnad 
WnrtMi &vi^telk»U>ff, an* aajaHl 

aanifiwwJi 1« awtor ta MaMM^mhtlklt 
m* la Mirfvor MMlauhtais f ataUl ww- 
nk» «M wUah ta km- l» ha dMMltd, tIM 
afwr wilMaw UUm W wJt , aa2 that 
■alfivBH toakhar annaw imlM. fUk 
■•^ «iHn toplio« !■ lU a« itadf, Ifnawn 
^ - iMapaatMaHaat tlni«WI« 



Balhtarh*«arii 
AapSawlhMw 
■dfthMl—ioft 



oAnnMl«adi*at|i»] 



«aM' ••■MMfpivMei 



■t|i»iaiBl« 
BatWwaril 



miBMriM»t»*a.wriaff ar datav aC« 
IMw b* Mr. ««*«v tW «Mi* ff)w«fcMa 
tvttaiitteM: »*»aaib^ •Tbair.pmk 
iWi »lblfl» b« w M li d , IbaaAaatiwai la 
lb. IMS aa<«at «> Mi. Oncbt, wbaaa bMt 
t* MM WHDMMaU aibeud W wbai was 
*tolir Mr. ObtTCAr. Aid Aat ilia RMfdvii 
tbtodiftiiit, Itkiak caHM hadiapma^ 
rtw ba MbMBt of tb« (Tawt in Maw- 
wMm^ mmt Iban Iba battto thmn br 
KpTbk MMi <ib% a, ni Iraba Ua ba^ 
bwat tba flwdhaUcfc^ ar battle lowad hj> Odwv. 
did sat bfttbaipriaaBar el tba bar: that ww 



■eonent killing bj 
in Bf nwfrid^g « 



Id peaev maaihaled byllriOewnv 

coMinaance of malioe )»tbe nriaonar flw 

afeave an boor alter the fiial confliot. What 
waa doM bore hj Ur. Gtower would ban beca 
nutiAaUe in him, eten if the caodlealiek had 
hit ibe priwoer: aod io it wu restored ■■ 
HawrMlKe'ieaBC; fbrthere the boUlo returned 
by Mr. Cope did hit the defendant, mod broke 
bis bead. Aail ai % act done hj Hr. Gower 
wia jitrtifiabia in bmi, it follows, that it caa 
ba no fcundatton ta exoiwe or mitiffate the «ah> 
by Mr. Oneby.' The eeaepi* 
" of ansaMnltby A upon B. 
ind pimaes A to the wall, 
where A in b» own defence kilh B ; this ia 
held ntarder in A, thotigh it bu many siTonf 
riwuwa tt uces in flffonr of A, which arenotia 
tbia caae. Bat I appreheDd, it i« not necessary 
to rIj bately oo this pmnt, that there ia inaiice 
iasplied in (be ad i since it plaialy appeara, 
upon tboata(cof thocaae, (hat heraisezpreaa 
iMliee. When Ibe deceawd waadeairoua te 
end (be Battler amieaUy, (he prisoner repfiea, 
"Ne, daoHi yoa, I will have your blood :" 
this ezphiioB and goea Areufih (he whde fbet, 
and pnnea the auhaeqnent failliog to be malt- 

I do therefore insist, that takinf; it ather 

way, citber as a killitiir out of malice implied, 

malice express, i' ' "' < ■• — ■^•- 



npoo the Hat ii a killing of malic 
aada p oa tbe priswar^ awa worda coupled 



SJJJ 



12 GEORGE I. 



Trial tf Major Oneb^f 



D 



i»itb the fact, it is m&lice express, and conse- 
queiitly murder. 

Serjeant Eyre^ for the defendant. The ques- 
tion is, what degrree of homicide this is; and I 
apprehend it to be but manslaugrhter : the dis- 
tinction is, that if the killings be of malice fore- 
thought, it is murder; if on a sudden' occa- 
sion, it is but manslaughter ; and that I take 
to be this case: in 3 Instit. 61 malice pre- 
pensed is defined to be, when one compasseth 
to kill another, and doth it udato animo : on 
the other hand, manslaugliter is the doin^ it 
without premeditation, upon a sudden brawl, 
shuffliofif, or contention. 3 Instit. 57. 

The law has ever been indnlmrent to the 
passions of men ; < ira furor bre? is est,' and 
therefore as a roadman, the party is excused 
for what he does in a sudden transport of 
pasRion. I do admit, that bare words are no 
provocation ; but yet they will serve to explain 
the nature of the combat, and shew whether 
it was sudden or not. The calling the prisoner 
a rascal, was what no man of honour could 
put up ; and as this was the beginning of the 
quarrel, the fijc^htinrr was as sudden as the re- 

S roach ful words. If the prisoner had stabbed 
^Ir. Gower, upon speakmg the words, and 
Gower had done nothing, I believe it would 
have been murder ; but here was a regular 
tight, an interchange of blows, and so it comes 
up to the case put in Kelyng o5, of a combat 
1»etween two of a sudden heat ; where if one 
kills the oilier, it is but manslaughter. 

The law has fixed no certain time, when it 
shall be presumed the passions of men arc 
cooled. The case in 12 Co. 87, must take up 
a longer time than this ; fur there the boy ran 
three quarters of a mile to his father, and told 
his story, and after that the father provided 
himiiplf with a cudgel, and had as far to fro 
in pursuit of the other boy ; and there is this 
ditference between that case and the case 
at bar ; that there the adversary was out of 
sight, but here he continuc<l in presence, 
which must rather inflame than abate the 
passion. 

I'he words made use of by Mr. Gower carry 
an imputation on Air. Oneby, which migKt 
provoke him afresh ; the tellmg him, he was 
ihe aggressor, was not likely to make an end of 
the quarrel : and that is plain, from the manner 
in which Mr. Onehy understood them, who 
would never have said so harsh a thing to his 
friend Mr. Gower, if he had l>eeo at that time 
in an^' degree musicr of himsell*. 

It is not ibund by the verdict who began, 
after Air. Gower returned into the room : it is 
not likely the prisoner began, because he hail 
his great coat thrown over \m shoulders ; and 
as to the shutting the door, it is stated to be 
done immediately on Mr. Gower's returning, 
and is likelier to be done by him that came into 
the room. When the first conflict happened, it 
appears Mr. Gower was the readiest to draw 
his sword; it was actually drawn, and Uie 
priaooer'i was not ; and lince it ia not italadi 



who drew first the second time, I think itoog 
to be explained by the first. 

To make it murder in the first instance, 
must be done with a weapon that wouki m 
danger life. The bottle in Mawgridge'a a 
was full of wine, and it hit him (Cope) sa m 
lently, that he never spoke more. But fbrs 
thing appearing upon the verdict, this am 
be onl^ a small oil- bottle, usually set v^] 
tables m pnblic-boujies; and might perhapa 
empty before it was flung. The case of 
Turner, which is taken notice of in Comb.4i 
was held manslaughter upon this 
cause the clog was not such an i 
from a blow with which it was Ukelj 
should ensue. But supposing the bottle 
be as big and as full as Mawgridge's ' 



jfet no harm was done by it here, as tbcra 
m Mawgridge's case. Here was no dra^ 
the sword eo instante^ as Mawgridge « 
which occasioned the judges to lay th^ 
turning the bottle by Mr. Cope out ot the ^ 
and construe the immediate drawing 
sword, as an intent to supply the miacft 
which the bottle might fall short of; ande"^ 
in that case, one great man difi*ered from 
rest of his brethren. — So that Mawgriilc 
case is materially difl*erent from this. Tti 
the intention from the first throwing the bo( 
was to commit munler, here it was othenri 
There the first boUle hit, here it missed. Th 
the murderer's intent was immediately earn 
into execution, here was a long intermplil 
The deceased needed not have returned, if I 
baii not been equally disposed to combat; ■ 
he himself said it was a fair combat, wUi 
there was no pretence to lay in Mawgridp 
case. 

Serjeant Darnall replied. The words on bi 
sides must certainly be laid out of the case; 
not, puppy was worse than rascal, because 
is the name of a beast. If Mr. Gower ti 
Oneby to be the aggressor, the condescend 
was greater in him ; it is no more than say fa 
I, who have been injured, am ready to pasi 
by. I do not find it was at all reiie<l upon 
Mawgridge's case, that the bottle was fu 
and as to the case in Coinberbatch, Tumc 
servant there had committed a fault, for wh 
he was liable to be c(>rrecte<l : the decease 
declaration was only that he received i 
wound by a fair push. 

The Court sniil nothing upon this arguroc 
but appointeil another to oe before all 
judges of Eugland. And in Easter term 1 
k)wing (May 6), it was accordingly argued 
Mr. liCe fur the king, and Air. Kettleby (i 
, jeant liaynes, who was rvtaiiu-d, being ill) 
the prisoner, to the same efl*ect as the fore 
argument. Str. vol. 2, 770. Tlii> prisoner 
being present in Serjeants-inn (ChaiictTy-lai 
a& he was in court u|)on the first argumei 
this last lieing only tu have the advico of 
other judgtti 



/sr Iht Murder nf WiHiam Comer. A. D. 1726. [42 

i-allfil htlf-erotms; ifaai thereupon Ihe said 
William GoivFr, in n jocular raatiQer, lel tbree 
piccRS "f money, cnlkil li(lt-|ieiice. Boil then 
ni J to th« saiti J'jhn Rich, ihat h<' hud set him 
ibrer piecM ; that ilie solil John Ooeby, ul ihs 
same time, kcI tbe saiJ John Ricli tlirce hnlt- 
crowDs, nhich the Eaid Jobn Rich won; and 
imn»>(1ialely the <uiil John Oneby, in an angry 
manlier, lamed to the said William Goiter, 
and BBid to him, that it was an impertinent 
tliini* to H-t balf-ppnee ; snil I'urther anid lo the 
said William Gower, that he, ihe laid William 
Gower, was an impertioeni \>up\>y in sodoiog; 
lo which the said Witlinm Gower then and 
there answered, that whosoever culled him to 
rascal; and thereupon the laid Juhn 
Oneb; tnoL up a ^lans biiitle, and wiih i;reBt 
force threw it at the said Wilham Gower ; but 
the glasa boHie did oot strike Ihe said William 
Gower, hut passing by near his heail brushed 
* 'a nemlce, which he llien had upon hii head, 
id btat out some of llie powder out iif hii pe- 
ike ; that thereupon the said WiUiHin Gower, 
immediately aiier, loase d a g\n%s nr <'andleslick 
at the said John Ooeby, but the iflant or cau- 
dlestick did not hit the said John Onehv, iiuun 
which, both tlie said John Oueby and Wilham 
Gower jiresenllv rose fruin their aeals, to fetch 
their swords, which then bung uii in the room ; 
and Ihe said William Gower thro di-ew hi* 
Bword out of the soahbard, hut the niiid John 
Onehy •cat hindered by olheri of tbe cumpany 
from drawing hisNimrd nut ol' Ihe scabbani ; 
whereupon the inid William Gower threw 
away hia sword, and iiy the interpoiitioo of tbe 
■aid Jobn Rich, ThomaH IUivLiuh, and Mi- 
chael Btiinl, tbe smd Wdlinin Gower and John 
Oneby «Bt dnwn 8);^iii, uU'l beutg so set iliiwo, 
contiuueii lor th>' Etiiucc uf an hour, in company 
with the said Juhn Rich, Tliomaa Hawkioa, 
and Michael Blunt ; ihat after the cxpiraiion 
of thai hour, the said William Gower said to 
the said John Oiieby, We have had hot worda, 
but ynu waa the aggressor, but I think, we 
may iiasi it over ; and at Uie same time tha 
■aid VVilliam Gower offered his band lo the said 
John Oneby ; to which the said John Oneby 
then aoswcreil the said William Goner, No, 
damn you, 1 will have your blood ; Ihat atter- 
wardc Ihe reckoning was paid by the said John 
Oneby, VVilliam Gower, John Rich. Thomas 
Hawkins, and Michael Blunt; and tluit th« 
Eaid William Gnwer, John Rich, Tbomaa 
Hawkins, andMichael Blunt, went out of the 
said ninju, with an intent id go home, leafing 
the said jobn Oneby in Ihe room ; thai Ihe 
said John Oneby, so a<i aforesaid, remaining in 
Iherooiu; called to tbe aaid William Gnifer, 
Young man, come back, I have something ID 
say loyou; that tliereu|HJn Ibe Siiid Wdbam 
Gower returned into the aaid room, and tba 
door nf tbe room was unroedialely flung lo, and 
shut ; by reason ol which shulting of the door, 
all of the said company, besides the said Wil- 
liam Gower and Jobn Onehy, were shut out of 
Iberuoin, and thai llien alter ahuiline of tba 
door, a clashing of sworda was heard i tbeu 



tm, tS Gm. 1, and 1 Geo. S, 1TS7. 

XfoaJiy, Jitnt 11. 
t/bf being brought to tlie bar froin 
\t»i the resolution of the Court, 
Raymond* delivered ihe npi- 
jadges, in the folloniug manner, 

KlSR Mrl. Jons OlSEBY. 

tanal sessioiis of the peace, held 
lall, for the county of Midillesex, 
Fdwusry, in the 13th year of bis 
ip], John On^y. of St. Martin's 
I, ttot, was indicted, for that he, 
■1 February, 19 Geo, al the said 
■iouily, foloDtarily, and of bis 
Rlbanghi, made an aasaull upon 
Goner, e*q. and that he the said 
iritb a sword, which he then and 
'diawD in his right hand, the said 
in and upon the lel^ part of 
.be navel, lekiniously. volun- 
tf his mabce fore'lhoushl, did 
thrust, giving the said William 
~ and there, with Ibe aaid drawn 
upou bis said left part ot* his 
e (tare), a noortal wound ; of 
wound, the said William Gower 
iwliing condition, from Ibe aatd 
'cbruary, to the Srd day of tbe 



■ nid mortal wound, did die ; and sn 
>4kd, Ihat the said Oneby, the said 

fcfe)ollioully, Toluniarily, and of 
thought, did kill and murder. 
Icment being delivered to the jus- 

r delivery for Newgale, Ibe said 
was arraigned thereupon, aod 
Guilty. And u)Miu the Trial. 
id belore Mr. baron Hale, and 
tTbompson, reconler of London, the 
■Im special verdict lullowing, viz. 
llw said Joho Oneby, and the snid 
>«w«r, together wiih John Ricli, 
lawkiiM, and Michael Blunt, were in 
iQgrlher in a room in (he Gastle la- 
e parish ofSt. Martin's in tbe fields. 

J manner ; that after the saiil John 
iatn Gower, Jobn Rich, I'hoiiias 
and Michael BInnI, had continued 
I ibe saiil room, lor ihe space of two 
>K and dice were called for; where- 
drawer aaid, that he bad dice but no 
llul thcreu|Hin Ihe said Juhn Oneby 
«! ihe drawer In bring a pepper-hox, 
hogly a pepper-box HHil dice were 
Ihal milled lately after, tbe said John 
HUam Uuwrr, Julm Rich, Thomas 
•nd Michael Bluul, began to gday 
nod after Ihey hod played hall : 
Mid Jobn Rtcb B«ke<l, il any of (he 
Mold *H him three pieces of money, 

■ 3, 



43] IS GEORGE L 

the jury find, that the said John Onebj gare 
the said William Gower, with his swonJ, tho 
mortal wound in the iDdicttnent mentioned, of 
which he died ; but they further find, that at 
the hreafcing up of the company, tlie said Joho 
Oneby had his great coat thrown over his 
shoulders, and that the said John Oneby re- 
ceifed three small wounds in the fighting with 
the said William Gower, and that tliesatd Wil- 
ham Gower being asked upon his death-bed, 
whether he the said William Gower had re- 
ceiTcd his wound in a roanoer among swords- 
men called fair ? answered, I think, I did : and 
they fuither find, tliat from the time the said 
John Oneby threw the glass bottle at the said 
William dower, there was no reconciliation 
between the said John Oneby and William 
Gower : and whether this is murder or man- 
slaughter, the jury pray the advice of the 
Court: and if,oec.'' 

So that the question upon the special verdict 
is, whether John Oneby, the prisoner at the 
bar, is guiltv of murder or manslaughter? 

A great deal of time was spent m drawing 
up this snecial rerdlct ; for although the trial 
at the Ola Bailey was in the beginning of hist 
Blarch was 19 months, yet the record was not 
removed into this court, 'till Hilary term last, 
towards the end of which term, it was argued 
by counsel on both sides ; and another argu- 
ment beincjr desired by the counsel for Uie pri- 
soner, we thought it proper to desire the opt- 
uion of all the rest of the judges ; and for that 
purjiose, it was argued berore all tho judges, at 
;sterjeant'8-inn hall in Chancery-lane, upon the 
6ch day of May last, which was as soon as all 
the judges could meet, by reason of the inter- 
vention of the circuits. And at\er mature con- 
sideration had upon a meeting of them, they 
uriaiim gave their opinions, and came to this 
resolution unanimously, not one of them dis- 
senting, and which 1 nave authority from them 
to declare, viz. 

That John Oneby, the prisoner at the Iwr, 
npon the facts found upon this special verdict, 
is guilty of murder. 

Without entering into a nice ezaminatbn of 
the several definitions or descriptions of mur- 
der, as they are found in the old law-books, as 
Bracton, Britton, and Fleta, where the wicked- 
ness of the act is aggravated by the circum- 
stances of secrecy or treachery, murder has 
been long since settled to be the voluntary kill- 
ing a person of malice prepense; and that, whe> 
ther it was done secretly or publidy. 8tanndf. 
PI. Cor. 18, b. S Inst. 54* 

But then it must be considered, what the 
word malk;e in such case imports. In com- 
mon acceptation, malice is took to be a set- 
tled anger (which requires some length of 
time) in one person against another, and a 
desire of revenge. But in the lenl accepta- 
tion, it imports wickedness, whicn includes a 
circumstance attending an act that cuts off all 
cicase. By 35 H. 8, o. 3, ibr taking away 
dergy, it is enacted, That every penon who 
•hnll ne indictMl of the erina ttenin men- 



Trial of Major Oneby^ 

tioned, and thereupon arrugned, and si 
mute, of malice or of frowaraiiess of xm 
shall lose the benetit of his dergy. Nov^ 
that place, malice can never be understooc 
the vulgar sense; for the party cannot 
thought to stand mote, out ot a settied asfl 
or desire of revenge, but only to save himSH 
and therefore such staiHling mute, and reAw 
to submit to the course of justice, is said tfl 
done wickedly, i. e. witliout any manner of* 
cuse, or out of frowardness of mind. 

Tliis malice, an essential ingredient to ma 
the kilUnff a peraon murder (to use Ike eipp 
sions of lord chief justice Coke, and lord 4l 
justice Hale, whose authority hath estabU 
them,) must be either implied or express ; i 
says Hale, in his Pleaa of the Crown 44, t 
implied nuilioe is coUeoted either from the m 
ner of doing, or firom the person slain, or i 
persoiTkilliog. As to the two last, there in 
occasion, at present, to take them into oon 
deration. 

1. As to the first, viz. firom the maMiei 
doing, as Hmle expresses it, or as Holt, ehi 
justice (vide Mawgridge*s case poiUa) m 
firom the nature of the action : 1. Wilfiii 
poisoning any man implies malioe. S. U 
man doth an act, that apfwrently must d# bar 
with an intent to do harm, and death easm 
it will be murder. As if A runs with n hsn 
used to strike, amongst a multitude of peop 
and the horse kills a man, it will be mesdi 
for the law implies maKoe firom tlie nataie 
the act. 3. Killing^ a man without a provoi 
tion is murder ; as if A meets B in the sirs 
and immediately runs him through wtlli 
sword, or knocks out his brains with a hai 
mcr or bottle. And if angry words had pe« 
in thai case between A and B, yet it wm 
have been murder in A, becauKe woi-da are i 
such a provocation, as will prevent such e I 
mioide from being murder; lord Morie; 
case, Kelynge 5Q*. 4. The law will imj 
malice from the nature of the original aetii 
or first assault, though blows pass between t 
parties, before the stroke is given, which ooi 
sions the death. As if npon angry worda 
abusive language between A and B, of a sudd 

A, without any provooalion (for aogry woi 
or abusive language in snch a case is look 
on as none), draws his sword immediately, n 
makes a pass at B, or strikes at him with ai 
dangerous weapon, as a pistol, hammer, lar 
stone, &c. which in all orobability might I 

B, or do him some great oodily hurt, and tb 
B draws his sword, and mutual |>aKses i 
made, and A kills B, this will be murder, i 
the act was voinntary ; and it appears fn 
the nature of it, that it was done with an i 
tent to do mischief; and therefore since in ; 
probability it might have occasiooed B's deal 
or dona liim some great bodily harm, the li 
implies malice prepense ; and the resistance 
passes that vrere made bv B, were but in ti 
defence of his person, which was violently ai 

« Seevd. 6,p.7a»eftUiCoUectinB. 



lii^tvv bMB carried before. 9. That 
■tteraned with the onaDimoiis opi- 
MIlfcelheB jadget, for one rerj great 
fifcelheBtwelfe, viz. lord Trevor, dif> 
m the other judges, and held it was 
■Auirhter. fiitt opoQ our meetincT to 
ef Aia prcaent case, all the judges 
mdj agreed, that Mawgridge's case 
med lair f , and that that judgment 
te and jast judgonent, so groundless 
iHiaiiatioDy which had ^en made 
ao miouatioD there was) in West^ 
mH, that same of the present judges 
ipaioo, that the judgment in Maw- 
aaa was not a legal judgment, 
lia is aa naoch as is necessary, rather 
I is necessary, tocbe said as to im- 
i0i^ ainoe there will be no occasion in 
la kok out for malice implied, 
ioa ncpreas is a design formed of tak- 
aaollMr man's life, or of doing some 
la BBoiher, in the execution ofwhic^ 
And this holds, where 



p ia Bot foTVied against an^ particu« 
if as if A^ having na particular ma- 



person, comes with 
naalatioo against all opposers ; if the 
ImfM, mad death ensoe, it is murder. 
tacoauMt a riot, to enter iato a park, 
B% case, H. P. C. 47. Moore 86, Sar. 
FA fMa with a reaolotion to kill the 
he aaals, and meeting B, kills him, 
lar wiA exjpnas maKoe : yet A had 
wi mmf mahce minst D, nor a^nst 
iiaon, Hach more it will ba 
F,~ when4ie mischievons design is 
at anj particular person, which 
•vidmit,aB well hj mmmstances 
I gpi aa s dedaratiana of the per- 



V 



Eve him no provocation wliatsever ; for when 
r. Gower set the three halt- pence, he set 
them against Mr. Rich, and that in a jocular 
manner ; tlierefore that was no affront to Mr. 
Oneby. 2. Upon that Mr. Oneby turned to 
Mr. Gower in an angrv manner, and g^ve him 
abusive language, and called him impertinent 
puppy; the answer of Gower was not im- 
proper, nor more than what might be expected, 
that whosoever called him so was a rascal. 
3. That as Oneby had before begun with 
Gower, by giving hire abusive language, so he 
then took up the glass-bottle, * et magnll cum 
?i,' threw at Gower, and beat the powder out 
of his peruke ; if it had killed Gower it had 
certainly been murder; upon which Gower 
tossed a gloss or candlesticK at Oneby •* And 
the difference of Anding in the special verdict 
is observable: Oneby threw the bottle at 
Gower, * magnft cum vi;' Gower only tossed 
the glaoa or candlestick at .Oneby. 4. Whan 
they fetched their awords, Gower did it only to 
.defend himself; for tba verdict finds, that 
though Gower drew his sword first, jix the 
prisoner at the bar being hindered by the com- 
pany from drawing his sword, Gower there- 
upon threw his sword away. 5. By the in- 
lerpoaition of the company, the prisoner at tba 
imr and Mr. Gower sat down again, and con- 
tinued in company for an hour ; after which 
Mr. Gower said. We have had hot words, but 
yon was the' aggressor, but I think we may 
pass it over, and offered his band to the pri- 
soner ; that the priaoner at the bar was the 
jggressor, is true, and that in a violent manner : 
Tlua was sufficient to have appeaaed Mr. 
Ond>y: hot what is his answer r No, damn 
yoo, I will have yoar blood. There ia an ex- 
I pnsa declDration of malice, an express de- 



O A.t 



47] 12 GEORGE I. 

room ; that the prisoner remaioioi^ in the 
rtyna, called to the said William Giiwer.aaviogf, 
<* Yuunt; maa, comeback, I have aometliiDK' to 
say to }-0H." Tltene word* also shew a plain de- 
Jiberaliofl ; and l>ciiig' attended with tbedrcum- 
ataoces tuiiud tiefure, and what foltowa imnie- 
dialely, import c»n tempt; ** Youn|r man" are 
insolent and impmous, and ** Come back,'' im- 
port a re»<;ntmc'nt he had conceived aniust Mr. 
Gower, abriut which he had somethin{|^ to say 
to him. For what purpose did the prisoner 
stay, after all the company had left the ro(rm 
to go home? It was to say something to Mr. 
Gowcr. What is that? Wliy, as soon as BIr. 
Gower is returned into the room, the door iras 
immediately flung to and shut, and the rest of 
the company shut out; and then after shutting 
die door, a cla-shing of swords was heard, and 
the prisoner gave .Mr. Gower the mortal wound, 
of which he died. 

These immediate subsequent facts shew, 
what it was the prisoner had to say to Mr. 
Gower ; it was to carry the malicious design, 
be bad bHbre declared he had against Mr. 
Gower, into eiecution, viz. to have his blood ; 
and be had it, for be gave him the wound of 
which he died. 

To go further: If the prisoner had malice 
against Mr. Gower, though tfiey tbuglit alter 
the door was shut, the interchange of blows 
will niake no diflerence ; for if A has malice 
against B, and meets H, and strikes him, B 
draws, A flies to the wall, A kills B, it is 
murder. H. F. C. 42. Kelynge 58. 

Nay, if the case had been, that there had 
been mutual malice between the prisoner and 
Air. Gower (which does not appear to have been 
on tlie part of the deceased)* and they had met 
and fought upon that malice, the killing Mr. 
Gower by the prisoner had been murder. 
11. P. C.47. 1 Bulstr. 86, 87. Hob. 121. 
Crompt. 21. 

The jud^ were all of opinion, upon the 
ftcts found m this verdict, there appeared to be 
express malice in Oneby against Mr. Gower ; 
and then Oneby killing Gower, having such 
express malice against him, they were all una- 
Dimous, and clear of opinion, that this was 
plainly murder. 

Having thus mentioned the reasons, upon 
which we ground this present resolution, 1 shall 
next consider, if any of the objections made 
by the counsel for the prisoner are in answer 
to these reasons, or take off the force of them. 
The counsel i'or the pri«Mier, Mr. Oneby, in- 
sisted, that upon the whole verdict, the* case 
was no more than that from a slight occasion 
passionate words arose, mutual reproaches 
passed; the quarrel was sudden, mutual as- 
saults were made; and on a sudden figliliug, in 
heat of passion, the prisoner killed the de- 
ceased, which can be uo more than man- 
alaiiflhler. 
That such fact could amount to no more 

* The verdict implies the contrary: Fur he 
•ffarad him his handy te. Fifrmcr "EdUuM. 

4 



Trial of Major Onebyt 

than manslaozhter ; they cited the known c 
that if A and B fall out lipon asiidtten, and L 
presently aji^ree to tight, and each fetches 
weapon, and go in to the tit-Id and fight, and 
of them kills the other ; this is but maoaiaugfc: 
H. P. C 48. 3 Instit. 67, because the pas^ 
was never cooled. 

In this case (said they) it is plain the tp^ 
arose on a sudden ; Mr. Onebv's passion 
raised, and that it is not founcf by ttie jur^ 
have ever been cooled; and therefore 
words 3lr. Oneby spoke. No, damn yoiB 
will have your blood, Nc<r. were only wordm 
heat, spoke under the continuance of the ■ 
passion. And they further insisted, that 
law hail fixe«l-'no time, in which the pasm 
must l>e took to be cool ; but that depemn a . 
circumstances, of which the jury are the pre 
judges. In this rase, the whole time ■ 
passed, between the f|uarrel, and giving 
mortal wound, was but little more tban 
hour; and it has been adjudged, that the p 
sion shall not be took to be cooled in very c 
that time. 12 Co. 87. Cro. Jac. 996. H. 
C. 48, Rowley 's case, where the child oT 
beat the chiUl of B. B's clnld, all bk>ody, 
home to his father ; B, the father, ran tla 
quarters of a mile, and beat the child of A ; 
means whereof he died : This was adjudged 
be only manslaughter ; yet there must ha 
been a considerable time after B was provok 
by the usage of his child before he killed A 
child, because he ran three quarters of a mill 
yet it lieing one continual passion raised ia 1 
upon tbe boating of his child, it was held ll 
was only mansUiughter. And in this preM 
case, to shew the passion of Mr. Oneby, wUi 
was suddenly raised, was not cooled, thu cou 
for Mr. Oneby observed, tliat the jury had c 

Kressly found that there was no reconcilialii 
etween Oneby, the prisoner, and Mr. Gowi 
the deceased, from the time Mr. Oneby ii 
threw the bottle. 

This 1 take to be the chief objection, up 
which the counsel for the prisoner principal 
relied. 

In answer to this objection, I must first ta 
notice, that where a man is killed, the law « 
not presume that it was upon a sudden quarr 
unless it is proved so to be ; and therefore 
Lcgg's case, Kelynge 37, it was agreed, up 
evidence, that if A kills B, and no sudden qui 
rel appears, it is munler ; for it lie^ upon t 
party indicted to prove the sudden quarrel. 

In the next place, from what I have aaid I 
fore, it ai)i»ear8, that though a quarrel was sc 
den, and mutual fighting before the mor 
wound given, it is by no means to be to 
as a general rule, that the killing a man « 
be only manslaughter. It is true, if i 
proaeht'ul language passes between A and , 
and A bids B draw, and they both dn 
(it is not material which of tliem dra* 
first,) and they both fight, and mutual |iaai 
are made, death ensuing from thence will 
oolv manslaughter, because it was of a sudd« 
and each ran the haiard of hit lift. But tin 



fir ike Murder of miUam. Gc^^r. 



A. D. me. 



m 



fe difi^Knce between thai caie, and 
ifHi words A drawa his sword, and 
. pMS at B, or with some dangerous 
aitacb him, and then B draws, and 
ki, and A kilb B ; there, though there 
isrel npOD abusive language, and there 
crvirdt a mutual figlitiug, yet since 
fai B with a weapon or instrument, 
■gll haf e taken au ay B's lite, though 
■^afterwards, that*will be murder. 
iiiwu agreed by all the judges in tbe 



fcrtbe argument's sake, and it is only 
HKDt'siake, and to give the objection 
}j Ike counsel for the prisoner its full 
if ii shuuld be looked on here, that 
kmd io the former part of the verdict 
■ a turideo quarrel, and only the effect 
Bi; yet, if it appears upon the special 
ibt Ibere was a sufficient time jior this 

• eool, and for reason to get the better 
mport of passion, and the subsequent 
r deliberate, before the mortal wound 
ikillJiigof the deceased will lie murder. 
dufjiMges were of opinion, that, upon 
ioB of the facts found, it appeared, 
hesn sufficient time for Mr. Oueby's 
rf pasition to cool,* and that he bad 
I; and that the killing of Mr. Gower 
boiie act, and the result of malice 
J bad conceived against the de- 

wf 1 nsentlon their reasons, I must 
this proposition, to which they all 
!. that the Court are judges of tbe 
i not tbe j iry ; and that the Court 
dges upon the facts found by the 
ler if the quarrel was sodden, there 
Tibe pasMuii to cool, or whether the 
iberate or not. 

le trial of the indictment, the judtre 
jury thus.f If you believe such 
witnesses, who have sworn such 
acts, the killing the deceased was 

* prepense express, or it was with 
ied, and^ then ^ou on^^ht to find the 
ilty of murder; but if }ou do not 
ie witnesses, then you ought to find 
of roan^^lallghter only ; uiid so ac- 
he nature of the case, if you }>elievc 
uch facts, the act \)ns dohhcrute, 
erate ; and then you ou'^ht to find 

And the jury may, if they thiuk 
'e a general verdict, either that 
r is (rnilty of murder, or of inan- 
But if they decline giving a general 
i wjU tiod the farts specially, the 
form their judginf^ut from the tacts 
•ther tliere was malice or not, or 
e fact was done on a sudden trans- 
ioBy or was an act of dehbcralion, or 



ach'a Hawkins's Pleas of the Crown, 

Lbl.s. S2. 
I, see the judgment of Lawrence, 
le of Dftriufbire v. Parker, l^ajit ^. 
VIL 



Attliougb there are many special vierdicts in 
indictments for murder, there never was one^ 
where the jury find in express terms thai 
the act was done with malice, or was nol 
done with malice prepense; or that it was 
done uiion a sudden quarrel, and in trans* 
port of passion ; or that the passion %vae 
cooletl or not cooled ; or that the act was de- 
liberate, or not deliberate : but the collection of 
those things from the facts found, is lefl to tbe 
judgment of the Court. Hollo way's case« 
Palm. 545. Cro. Car. 131. W. Jones 198w 
So in the case cited by the counsel for the pri- 
soner, Cro. J ac. 1296, tlowley's case, the jury 
find tiie fact, but don't find in express termS| 
tliat the father, whose child was beat, killed the 
other child in a sudden heat of passion ; but that 
was left to the judgment of the Court, upon tht 
particular facts found. 

But then it is objected, that the law liai 
fixed no time, in which the passion must ba 
supposed to be cooled, it is very true, it hav 
not, nor could it, because passions in some per* 
sons are stronger, and their judgrroents weaker^ 
than in others ; and by consequence it will re- 
quire a longer time in some, for reason to get 
tne better of their passions, than in others : but 
that must depend upon the facts, which shew 
whether the person has deliberated or not ; for 
acts of deliberation will make it appear whe- 
ther that violent transport of passion was cooled 
or no. 

But thus far the resolution of the judget 
have already gone ; and it has been adjudged^ 
that if two tali out upon a sudden, and thoy ap- 
point to fight next day, that the passion by 
that time must he looked on to be cooled ; and 
in suoh casey if they meet next dn}', and fight, 
and the one kills the other at that meeting, it 
has been often held to he murder. Hale P. C. 
48. 

To go a little farther. If two men fall out 
in the morning, and meet and fight in the af- 
ternoon, and one of them is slain, this is niur> 
der ; for there was time to nlluy the iioat, and 
their noeeting is of malice. So is Loggia case, 
Kelynge 27. 

At the meeting of all the judges, before lord 
Morley'b* Trial by the i>ecr8, for the murder of 
one Hastings, they all agreed, that if upon 
words two men grow to anger, and atlerwards 
they suppress that anger, and thru fall into 
other discourse, or have other diversions, for 
such a reasonable space of time a J in reasonable 
intendment their heat might be cooled ; and 
some time after they draw upon one another, 
and tight, and one of them is killed ; this is 
niurdtr, because being attended with such cir- 
cumstances, it is reasonably aupposed to be a 
deliberate act, and a premeditated revenge ufion 
tbe first quarrel. But the circumstances of 
such an act being matter of fact, the jury are 
judges of them, Kelynge 56. The ineanins- of 
which last words is,*<hat the jury are judges of 
the facts, from which those circumstances are 



mm 



•w«a«*a<w 



£ 



* SceVyi.o, p. vry. 



51] 



If GEORGC I. 



eollecfeil. But, ai I nid before, wlfcn Hioie 
Acts are foomi, the Court n to jodge from 
them, whether they do not sbeir the act was 
deliberate or not. 

liOrd Mnrley upon his trial by the peers 
was acquitted ; and aAer that, \n Easter terra, 
18 Car. 2, Broomwich, who was indicted as a 
priucipal, in being present, aiding, and abetting^ 
lord Moriey, in the murder of Hasting, was 
tried at the Ring's-bench bar. The quarrel 
was at a taTem ; but it was proved, when the 
quarrel was at the tavern, that lord Morley 
said, if we fight at this time, I shall have a 
disadvatitage, by reason of the height of my 
shoes ; and presently afler they went into the 
fielrfs, and fooffbt ; lord Noriey killed Hast- 
infB : hot while they were fighting, Broom- 
wich made a thnist at Hasting^ and lord Mor- 
ley closed in with Hastings, and killed him ; 
and (siEiys the book) this was held as clear evi- 
dence of their intention to fight, when they 
went out of tlie taveni ; and the quarrel being 
only about words, and fighting in a little time 
after, it was held nurder by all the Court. And 
there need not be a night's time between the 
quarrel and the fighting, to make it murder, 
but such time only, as it may appear not to be 
done on the first passion; for loro Morley con- 
iidered the disadvantage of his shoes ; and the 
Court directed the jury that it was murder in 
Broomwich, beinff present, and aiding; but 
the jury acquitted him. 1 Sid. 277, reports 
the same case, and say^, that the Court, in the 
direction to the jury, laid it down, that after the 
provocation in the house, they say, this is no 
convenient place (and so have reason to judge 
of conveniency), and appoint another place, 
tliougli the finrlit is to be presently : this b 
murder, for uie circumstances shew their 
temper. 

In ri. P. C. 48, if A and R fall out, A says 
lie will not strike, but will give B a pot of ale 
to t<mcli him, B strikes, A kills him ; murder. 

Two quarrel ; the one savs, if you'll go into 
the field, I will break your head, aud there one 
lulls the other ; murder. Crompt. 95, p. 49. 
Two fall out on a sudden in the town, and they 
%y agreement go into the field presently, and 
one kills the other ; murder. Crompt. 23, fol. 
SI. 

From these cases it appears, that though the 
law of England is so far peculiarly favourable 
(I use the word peculiarly, because I know bo 
other law that makes sudi a distinction between 
murder and manslaughter), as to permit the 
excess of anger and passion (which a man 
ought to keep under, and govern) in some in- 
stances to extenuate the greatest of private in- 
juries, as the taking away a man's life is ; yet 
iu tliuse cases, it must be such a passion, as fbr 
the time deprives him of his reasoning facul- 
ties; fur if it appears reason has resumed its 
office ; if it ap|iears, he reflects, deliberates, and 
considers, liefore be gives the fatal stroke, 
which cannot be, as long as the fury of passion 
continues; thekiw will nojonger, under that 
pretext of pasiiou, exempt him from the pu- 



IVJU tfMaj&F Oiufyt 

mhnient, which fhmi tlie greatne« o 
injury and heinoasnesa of the crime be . 
deserves, so as to lessen it from murder to 
slaughter. Let us see, therefore, whether 
this special verdict it appears that the fis 
and killing Mr. Gower was only done \i 
of {lassion, or was a deliberate act. By 
I obeerved before, it plainly appears it was 
liberate act. But to recapitnhite in short ; 
the words had passed, and the bottle wastt 
by the prisoner ; and swords drawn ; b 
interposition of friends they sat down, an<! 
tinned in company for an hour (a ream 
time under those circumstances for the pi 
to cool) ; and afler that hour expired, tl 
ceased says. We have bad hot words, bu 
was the aggressor ; but, I think we ma] 
it over ; aud at the same time offered hii 
to the prisoner, which was enough to hai 
peased the prisoner : To this Mr. Oneb; 
swered, No, thimn you, I'll have your i 
words expressing malice, not passion : ' 
when the company went out of the root 
prisoner stayed, and called the deceased I 
Young man, come back, 1 have somethi 
say to yon : The door immediately was 
clashing of swords was heard, and the dec 
received the morul woand from the priso 
the bar. The prisoner's words shew, wbi 
his intention, vis. to take away Mr. Oc 
life ; and the kilNiig htm may properiy b 
to have been done upon deliberation anil 
sideration. 

The counsel for the prisoner in their 
ments insisted, that there were severs 
cumstances found in the special verdict i 
vour of the prisorier, which were a foun< 
fbr the Court, to construe the other expre 
to be ofdy words of heat ; and that what I 
was in the heat of his first passion, whic 
never cooled, and not out of malice. 
It is found, that at the breaking up of the 
pany, Mr. Ooeby had his great coat tl 
over his shoulders ; from whence it woi 
a strain, to think he then intended to figh 
Mr. Gower. 2. It might be Mr. Gowe 
shut the door, who came back after he wi 
of the room, the jury not having fbun4 
shut the door. S. That it was found, 
was no reconciliation between them, froi 
throwing the bottle at Mr. Gower. Bui 
the first of these objections, considerin 
words the prisoner used after this, and aft 
deceased was out of the room, and what f« 
ed, since the jury have found this fact, wi 
saying any more about it, the natural 
striiction is, that this was only used by th 
soner as a blind to the company, to oc 
from them his real intention, till they 
gone out of the room. As to thesecoD 
stands ouoertain upon the verdict ; hot .il 
uncertainty which can have no influence 
the present determination ; for if Mr. C 
bad shut the door, that would not akme 
materially altered the case. As to the t 
since express malice before appeared to 
the prisoacTi the^mting thai net doei m 



far thg Shurier »f WSliam Cower. 



A. D. 179S> 



[^ 



M A« fint beat of pamoD continued 
rtlhat the maliGe onolioiMd. 
counsel for Mr. Ooeby farther objecteJ, 
Mared there was a motual fitfiiting 
K«er was shot ; for it is fband Uiat he 
id Area slieiit wounds ; tlien it is not 
.ibdrew first, or made the first assault, 
ktktr was ahut ; and it was possihte a 
■Ha <|aarrel might then rise, in which 
tor Bjffbt be the aggressor, and there- 
jafedsT verdict was uncertain in a ma- 
pal. The answer to which is, what is 
ilq^'s Case, Kelynge S7, cited before ; 
'4UlsB, and do sudden qusrrel ap- 
iiiaarder ; lor it lies on the iiartv in- 
)to^Te the8uddeni|uarrcl; audtnere- 
ijay not baTiug found anv such thing 
!piNoer'a bvncnt, it is to be took there 
taeh. This u said, supposing the latter 
itrerdict could be considered, without 
iif the fimner part of it : and that when 
f|M]r went out of the room, the nrtsoner 
bGowct wcflereoanciled. But however 
%ht have been, b«ne it appears there 
wcsnrilialifin, and therefore there can 
Bigination of a new, original quarrel in 
■sfter the door was shut. And as to 
fk wounds the prisoner received, that is 
nd; Ibrhe having malice against Mr. 
(IbDugh there was mutual figbting, and 
wer was wounded, yet, when he killed 
»cr, it will be OMirdcs'. 
ba Act in the special verdict, which 
U on, was, when Mr. Gower was ask- 
iIm destb4»ed, whether be had received 
■di in a manner among swordsmen 
Vr? He answered, 1 think I did ; 
^ Ike deceased shewed, he was satisfied 
Asa fair. The answer to which is 
' A« if A have malice against B, and 
■Mud fight, though the fight is never 
'Mrding to the law of arms, yet if A 
Jtvill be murder. 

SKs the counsel for theprisoner princi- 
died on to make this fact only man- 
V, were Rowley's Case, 13 Coke 87 ; 
ner's Case, Comberbatch, 407, 8. 

13 Coke 87, the case was, that two 
bting tog^her, the one of them was 
d in the fiMse, and he bled a great deal 
•e ; and so he ran three-quarters of a 
lis fkxhetf who seeing him very bloody, 
bis hand a cudgel, and went three- 
of a mile to the other boy, and struck 
D the head, upon which he died, aud it 

bat manslaughter, for the passion of 
r cnntioned. And there is no time, 

law can determine, that it was so 
bat it ahould be adjudge)! malice pre- 
(Note, Theae are the words of is Coke 

ieh the answer is plain, for the reaaon 
Cro. 4ac. 396, which is the same case, 
fiuher having no anger before, but 
dvoked upon Uie complaint and sight 
m'a blood, and in that anger beating 
vUsh Im died, the Uw Mi^m^C^ ^ ^ 



be u|u>n that sudden passion. But that is, coi:* 
sideriagwliat has been said before, clearly dis- 
tinguishable from the present case ; besides it 
may be added, it was but a little cudgrl he 
struck with, from which no such fatal etent 
could be reamnably expected.* 

Turner's Case was this ; his wife complain- 
ed the boy had not cleaned her ck)gs. upon 
which Mr. Turner took up a clog, and struck 
him on the head, and killed him ; and though 
there was no oilier provocation, it was hehl 
only manslaughter. But the reason of that 
was, because the cloff was so small, there 
could be no design to uoany great harm to tiie 
boy, much less to kill him; and a master may 
correct a servant in a reasonable manner for a 
fault. And lord chid" justice Holt, in Comber- 
balcb 408, says, that iu that case, it was an un- 
likely thing, meaning, tiiat the dcjg should kill 
the boy. The counsel for the prisoner, bein^ 
apprehensive of the authority of Mawgridge's 
C-ase, besides the observationa they had made, 
mentioned before, to induce the Court to look 
upon that judgment, as not warranted by law, 
endeavoured to distinguish the present case from 
it, supposing it io be Taw. And lit, They said, 
that in Mawgridge's Case, the bottle hit Mr. 
Cope, and stuimed him ; but here the bottle did 
not hit Mr. Gower, but only brushed some 
powder out of his peruke. 3dly, in Maw- 
gridge's Case, the bottle was full of wine ; here 
it is not found to bsve been so, and therefore 
must be took to have been empty ; and the size 
of the bottle does not appear, it might be very 
small. Sdly, Mawgridge drew his sword im- 
mediately aller throwing the bottle, without in- 
termission ; here Mr. Gower^s sword was first 
drawn. 4thly, Mr. Cope nerer drew ; here 
Mr. Gower not only drew the first, hut clashing 
of swords were beard, so there must have been 
fighting. 

It is very true (so far as these facts will make 
a difference) this present case is diKtinguishable 
from Mawgridge's Case ; for that case was 
determined only upon an implied malice (hut, 
as I said before, was very rightly and justly 
determined, as we all agreed), for strictly and 
properly speaking, altlioiigh the word exprew- 
malice is mentioned io the reasons given for 
that resolution, yet it was but mahce implied. 
But still this way of distinguishinjr the present 
case from Mawgridge's, will lie ol no seryiceto 
the prisoner, because, though all the juclg*a 
heldUiis case was distinguishable from Maw, 
gridge's Case ; it was in respect that t^^^is « a» 
a much stronger case a. to the '"""ler th* 
jury having foundfiicts which •»J'^?. J^^'^Vj^^Jy 
U an expn.» inalic^ ags.ns^ M- ^C-wer 

Upon the ^^«!« ™»"/^r\||^^^^^ 

concurrent op""«n f •" ^J^^ba^, John One! 

• Vide Foster's lUporU, p. W4, Rowle^-^ 
CMe. 



tff] 19 GEORGE I. 

fkctioD, but tl •DDther time and place lie irniild 
be reuily lo gire it to him, ind in the mean time 
dciiral faim to be more civil, or to leave the 
csmpany : tbereupon Jobn Mawgriilge rose 
vp, and waa goio^ out of the ruom ; bdiI to (;o- 
log, did (uililenly suatcli up a glasi boille lull 
oTwiDe tUen rtaiiding upoo the table, and lio- 
Imtly tlirew it at him, tlie said Mr. Cope, aiid 
therewith ctrucL him upon the head, and im- 
mediately thereupon, wiUiout any iDlermiiEi<»i, 
drew his ■word, and Ihriut bim into the led 

Ert lit' hit breast, orer the arm of one Robert 
irtit), nut»ith standi D[r the tudearour Uied 
by the caiil Martin to hiader Uawgridse firam 
killing Mr. Cope, and gave Mr, Cope the 
wouod in the iudiciment meDtioned, whereof 
beiniitantly dieil. Butthejnry dofurtheraajr, 
tfaat iuimcdialelv, in a little apace of time, be- 
Iween Mawgriii^e's dniwiu<r hii anord, and 
tiie giving tlie mortal wound by him, Mr. Cope 
did ante from his chair where he sat, and took 
Mwther bottle that then atood upon the table, 
and ihrcw ii at Slawgridge, whicn did hit and 
break hit head ; that Mr. Cope bad do iword 
in hit haod drawn all the while; and that 
•(ter Mawgridge had throirn the bottle, Mr. 
Cope tpake not. And whctlier Ihii be murder 
fir mautlaugbter, the jury pray the advice of 
the Court. 

A day being appointed fmr the retnlulion of 
die Court, and the maralial required to bring 
the pritouer to the bar, returard he wai e*- 
ctped ; which being recorded, the Chief Juttice 
(Holt) gave the opinion of the judgea in this 
manner ; 

Tbia Record being remored into Ihii Court, 
thecaae haiii been argued before all the judge*; 
■nd all of ut, except ray lord chief juttit'e Tn- 
-VOr, arc of opiuiua that Mawgridge it guilty of 
murder. 

Tliia hath been a cate of great expectation. 

This ditlinction between murder and man- 
■taujfhler only, is occasiuDed by the ttatate of 
13 H . 7, and other itatutet that took away the 
benefit of clergy from murder committed by 
mah'ce prcpeuKd, whiuh tlatuiea have been ttic 
DccatioD ol many uire tpeculatiops. 

The word " murder" i* known to be a tern 
•r a deatriplion of boinicide committed in the 
WOrat manucr, which is no where vied but in 
thit itland, tud it a word framed by our Saxon 
•ncavtoraiu ibereignof Canutus upun a pai lieu- 
lar occasion, which appears by an uncontuited 
■nthorily, Lamb. HI. In the laws of Edward 
the Oonleatur : " Murdra qiiidem ioventa fuC' 
>unt in diebus Canuli * lUgit, qui pott acqni- 



* But according lo lord Fortescua; " Mnr- 
der ii a Saxon woni, and to be fbuud in several 
placea in the aticienl Haxoii laws ; and it of a 
lery aucieol dale, ptabably at old ts tbp Haion 
tongue itself, which it alioul 600 yeart older 
than Canutut't time. We frequently in Saxon 
aulhsra find the worda ■orttw-, narthtr, war- 
Mar, vnilbsT or mvdar ; Bud tbafe coma from 
Ike BDciaiil Buon ward mertk ; which ligsi- 



3Via/ of Major Oiubif— 
aitam Aogllam et pacificatam, rofnto I 
An',rliK: TEmisit in Uaciam exercilum 
Tbereupon a law was made. That ifai 
Itthman ahould kill any of the Danes thi 
leli behind, jf he were apprehended, b 
be bound to underijio the ordeal trial 
himself; and if the murderer were n 

in eight davi, and alter that a mii 
given, ilien if be could nut be found, 
ihould pay 46 marks, which if not abb 
it ahonld he levied upon the huiulied, 
ion, 130, agrees with this account. 

Tlioufih this law cea*ed upon llie ( 
of tbe Danes, yet William the Cooqt 
vived it for the aecnrity of hit Normac 
peara by Ids laws, after he had contira 
Edward the Coiifessor'B laws. And I 

' primo regoi, afterwards by hia 
appears iu tbe addition to l.an)bc-rt)esl 
"That if a man be found slain, he a! 
taken to be a Freucliman, if it was ni 
tliat he waa an Englishoiui, and the 
waa bound to euquire, whether Ibe pet 
waa an EnglishmanoraFrcachman." 
inquisitions were taken before the f:on 
returned to thejiittices io eyre, and if 
found him an Englishman, then the 
waa tn be discharged, which low w: 
Englisbire, and the justicea in eyre \ 
bound to enquire thereof, until the stat 
E. 3, which, aa it is mentioued in ii 
waa abolished. 

Ilcrehy a mistake npon the statute < 
bridge it rectified, which it cap. 36. 
drum de octero non adjudicatur coran 
nriis, ubi per infortunium adjudicatun 
locuru habeat murdrum de ioterfect 
loniam tanlum, et non aliter." This 
made upon a supposition that he tlmt I 
person alaiu by misfortune should ba 
but only to explain, or rather to take c 
gour of the Canqiieror*t law, that ilu 
should not be couipelled to find out t 
slayer ; or if he were found out, lie ah 
undergo the penalty of that law. F< 
taw ttood, or was interpreted before i 
lute, if a man was found to lie slain, it 
ways inteuded, 1. That he was a Ftc 
3. That he was killed by an Eoxlishi 
That killing was mutdtr. 4. II' any 
apprehended to be the murdcnr, be i 
tried by fire and water, though he ki 
liy misfortune ; which was exicndet 
raacon and jutticc in favour of the M 



fie* a Tuilent death, or sudden destriic 
SDmelimes significt murder,in the prcs 
ofourcoinmoD lawyers. From hem 
thf barbarous Idtin term wurJruM | 
drum, and tba vedjs mordraiv, nurd 
mordidrare ; which arc of much gre: 
quily than king Canutut, who began 
but m lOlS. Now give ne leave lo 
the true derivation of eur word m 
wb«^ I Ihi^ maniftatly cquuh frooi 
morti itn." f onmow iJaw'a Pt«£ 
lUperti. 



MmKgridge^s Cote* 

SMitttfi frwkillfld by oiitforMM, 
bim wai not m danger of death, 
vai DDt M&tj, For. Mitb Bncton 
e Ibe bltef «ld of If . S,) fol. 1S6, 
Ufleib a man by mndbrtaDe, nM to 
fed." 5. Iflheittalieraetor was not 

■ tbtf csMRitTy fi^aa to be anicTMd, 
b itatato of MaiMridffe, if it was 
tf dw peraoB alaiD was d rreachitaaii, 
M 1^ mialbrloiip, then tho onuntry 
I be amerced if the mnnslayeir was 
; m if he were tafceti, be should not 
his ordeal trial. This seems to be 
■sning of that statata. 

Bsadly, it will appcartoa demonstra- 
kfbre that afatnte, be that killed an 

■ ' tier infbrtaDinm ' was never in 
r of death ; for tbb slatme of Marie- 
s made 59 R. S. The statnte of 
tarta waa consummate 9 fl. S, and 
IPS, ** That every one iwspr i soncd ftit 
rf a maai, and riot thereof indicted, 
i|;ht iHirsae the writ DeOdio et Atia ; 
ns roond that the person imprisoned 
I * se defcndendo,' or * per infor- 
Btd not ' per f^loniam,' then he was 
i." Wfaieb shews that he was not 
sf death ; for if he had, he would not 
let to bail, « Inst. 42. 

1 bare ^veo a true aeconnt of the 
ke word M order, what it w«i when 
e time of Caniftbs) a Dane, and since 
a the Confjueror) when a Frenchman 
I; for, as it was then sniiposed in the 
^snntns, the Kn<;1ishmen hated ihe 
•D the account of thrir nation thst 
iritbem, and would u{K)n all orra- 
ktbeir de^truriinn, as thr>y did of a 
lUe Dumber of them in the time of 
li Ike Saxon kin«r ihnt )trrrciled Cai^n- 
veone; so tiie (-oni|U«'ior bad the 
■i to suspect the safety of his Nor- 

ads, as sppeara hy the Confrssor's 
Bb. 141, the secret or iDKidious killing 
m as well as a foreigner was declared 
der. Bracton, ISO, 134, 155. Mur- 
H de6ffed, *' Est occulta homiiium 
m et fiotorum occisio matiu hominuin 
frpetrata." With which agrees the 
books of Britton and Ffcta : only in 
brrigner it was penal to the country ; 
itive. 

niay be necessary to shew what was 
rstrKMl by Homicide or Manslanj^hter. 
'23, mentions the worst {tart iif it, 

vulantary liomicide, defined in this 
* Si quis cx cert a Rcientift ct in a«isul- 
litato, ira, vol odio, vrl causd lucri, 
. in felonift, ac contra pacem Dominr 
lem interfecpfit :" if one knowinely, 
fomeditateil a<)«aiili, by an^er or ha- 
' hicre-sake, should kill another, this 
inted maoslau^jrhter ; if it be done 
' saith Bracton, it is ftmrder : that 
e difference there was between the 
s otfaer: 



A.D. 1706. 



[69 



It appearb, that sinee that of Bracton the no* 
tioA of moider is much altered, and coropre« 
bends all homicides, whether privately or pub* 
licly committed, if done by nsalice prepensed. 
With this airreea Stam. PI. Cor. 18 b. << At 
this day (saitb he^ a man may define murder in 
another manner ttian it ia defined by Bracton^ 
Britton and Fleta : If any one of malice pre- 
pensed, doth kill another, be he Enfflishman or 
foreigner, if secretly or publicly, tnat is mur- 
der: this waa the definition long before the 
making of the slatntea of 4 and S3 H. 8, and 
the other statntes that took away clergy." To 
define murder, there must be mafitidprsteogitatd^ 
as also murdravit : so that if an indictment ho 
thai the party muiHlravitf and not ex malitU 
pracogitatA^ it is but manslaughter, Yel. 204. 
2 Cm. 98S. 1 Bid. 141, Bradly and Banks. So 
if it be ejr mnlUiS pr^teogitaiAf omitting mar- 
drarity it is but manslaughter. Dyer S61. PI. 
Sd->d04. PI. 56. Vide Stat. 10 £. S, cap. 2. 
The parliament complained that mnrderers, 
&o. Were encooraged to offend, because nardona 
of manstanghtefs were granted ao easily ; tha 
act therefore prohibits the ^nting thereof. 
13 R. 9, recites the same mischief, and great 
damage by treasons, mnrdera, &c. because par^ 
dons have been aasily granted : therefore tha 
act doth provide, *< That if a charter for tlia 
death of a man be alleged before any justice, 
in which charter it is not specified that he of 
whose death any such is arraigned was mur- 
dered or slain by await, assault or malice pre* 
penscd, it shall be enquired, whether he was 
murdered or slain by assault, await, or malicd 
pre|)ensed ; and if it be so found, the charter of 
pardon shall be disallowed.'* This is a plain 
description of murder, as it was taken to he 
according to the common understanding of 
men. 

Ever since the killing of a man by assault of 
malice prepensed hath been allowed to he mur- 
der, and to com prebend the other two instances. 
Bnt Ivecanse that way of killing hy poison did 
not come under the ancient definition of Brac-« 
ton, (^c. which is said to be manu hominumper* 
ptlrnta^ or of this statute of 13 R. S. There'* 
fore by the statute of 1 E. 6, c. 13, it was en- 
acted, *' That wilful poisoning of any person 
should be accounted wilful murder of malice 
prepensed." 

One thing more is fit to be observed, that in 
all indictments for murder a man is not charged 
positively, that he did murder the person slain, 
hnt that he ' ex malitift prsBCOgital^. in ipsum 
' inKultiim fecit, ac cum quoilam gladio,' he 
gave him a wound whereof bed ie<l : * Et sic ex 
* maliti^ pra:cogitatft ipsum murdravit,* so the 
mnrder is charged upon him by way of conclu- 
sion, and as a consequence from the antecedent 
matter that is positively alleged. To come 
close to a state of the present qtiestion, it doth 
appear that Mawgridge threw the bottle at 
Mr. Cope without any provocation given to 
him ; for the diflercnce was betwren him and 
the woman that was there in com|tanv, and his 
bebaifiour was so rude and dista^tcful'as did m* 



es] 



12 GE0B6E I. 



duce eaotain Cope to desire him to leave the 
room, wtiere he was only ajg^est to him, and 
there by his permission ; this Cope might rea- 
sonably do, which could be no cause to provoke 
Mawgridge to make the least assault upon 
him : therefore I shall maintain these three 
positions : 

1. That in this case there is eamress malice 
by the nature and manner of Mawgrid^e's 
throwing the bottle, and drawing his sword im- 
mediately thereU])OD. 

S. That Mr. Cope's throwing a bottle at 
Mawgridge, whereby he was hit and hurt 
before he gave Mr. Cope the mortal wound, 
cannot make any alteration in the offence by 
reducing it to be of so low a degree as man- 
slaughter. 

3. 1 shall consider what is such a provoca- 
tion, as will make the act of killing to be but a 
manslaughter only. 

1. Here is express mah'ce, that appears by 
the nature of the action. Some have been led 
into a'roistake, by not well considering what 
the passion of malice is ; they have construed 
it to be a rancour of mind lodgetl in the person 
kllliug, for some considerable time before the 
iM>mmission of the fact, which is a mistake 
arising from the not well distinguishing be- 
tween hatred and malice. Envy, hatred, and 
malice, are three distinct passions of the mind. 

1st. Envv pro|)erly is a repining, or being 
grieved at the happiness and prosperity of an- 
other, * Invidus alterius rebus macrescit opimis.' 

2dl3', Hatred, which is oc/ium, is, as Tully 
•aith, ira inveterata^ a rancour fixed and settled 
in the mind of one towards another, which ad- 
mits of several deerees. It may arrive to so 
high a degree, and may carry a man so far as 
to wish the hurt of him, though not to perpe- 
trate it himself. 

3(ily, Malice is a design formed of doing 
miscliief to another; 'Cum quis dat& opeiS 
'male agit,' he that designs and useth the 
means to do ill, is malicious, 2 Inst. 42. Odium 
signifies hatred, atia malice, because it is eager, 
aharp, and cruel. He that doth a cruel act vo- 
luntarily, doth it of malice prepensed, 3 Inst. 62. 
By the statute of 5 Hen. 4, If any one out of 
malice prepensed shall cut out the tongue, or put 
out the eyes of another, he shall incur the pain 
of felony. If one doth such a mischief on a 
sudden, that is malice prepensed ; for,saith mv 
hird Coke, ** If it be voluntarily, the law will 
imply malice." Therefore when a man shall, 
without any provocation, stab another with a 
dagger, or knock out his brains with aliottle, 
this is express malice, for he designedly and 
|iurposely did him the mischief. This is such 
an act that is malicious in the nature of the act 
itself, if found by a jury, though it be sudden, 
and the words ex malitH pr^cogilatd are not in 
the verdict, 1 Cro. 131. Ualloway's case, who 
was woodward of Osterly-park, in Middlesex ; 
a boy came there to cut [steal] wood, whom by 
obanoe he espying, and the bov being upon a 
tree, he immediately calls to him to descend, 
whish thf boy obeyingi HaBoway tiad him to 



Trial of Major Xindf^-^ 

an hone's tail with a oord that t] 
then gave him two blows, the hon 
and brake the boy *s shoulder, wher 
This was ruled to be murder by ail 
and barons, except justice Huttoo 
doubted thereof ; and that was a si 
than this ; for there was some kind 
tion in the boy, who was stealing i 
the park, of which Halloway hai 
and it cannot be reasonably thouj 
designed more than the chastisemen 
and the horse running away in tl 
was a surprize to Halloway ; yet ii 
boy did not resist him, his tying 
horse's tail was an act of cruelty 
whereof proving so fatal, it was i 
be malice prefieused, though of a s 
in the heat of passion. This case 
in Jones, 198. Pal. 585. And t 
that the Court could determine it t 
prepensed upon the special ma 
Crompton 23. Two playing at ta 
in their same, one u|>on a suddc 
other with a dagger : this was held 
der by Bromley at Chester assiz 
So in this case, if the bottle bad k\\\\ 
before he had returned the bottle 
gridge, that would have been mui 
all manner of doubt. 

in the second place, I come uow 
whether Mr. Co|)e's returning a 
Mawgridge before he gave him 
wound with the sword, shall have i 
of influence upon the case : I hold 
Because Mawgridge bj^ his throwii 
had manifested a malicious design, 
his sword was drawn immediatel; 
the mischief which the bottle roigi 
of. Thirdly, The throwing the ho 
tain Cope was justifiable and It 
though he had wounded Mawgridg 
have Justified it in an action of 
battery, and therefore cannot be ar 
tion to Mawgridge to stab him will 
That the throwing the bottle is a de 
of malice is not to be controverted ; 
that violent act he had killed Mr. C 
been murder. Now it hath been i 
A of his owuialice prepensed asi 
kill him, an^B draws his sword i 
A and pursues hun, then A for his 
gives back, and retreats to a wall, B 
ing him with his drawn sword, A 
fence kills B. This is murder in 
having malice against B, and in 
thereof endeavouring to kill him, is 
for all the consequences, of which 
original cause.* It is not reasoni 
man that is dangerously assaulted, 
he perceives his life in danger from 
sary, but to have liberty for the sec 
own life, to pursue him that mal 
saulted him ; for " he that hath 
that he hath malice against anoth< 
to be trusted with a (hmgerous wc 

* 8ec East's Picas of tha Ciowi 



Mmogridge*$ CoMe, 

bit. ^8. Bak 49. And wo molted 
indgn, 18 Car. 9, when they met in 
ni, in |ireparation for my lord Mor- 
. I>alt. 979. If A of malice pre- 
Nharpe a |iwtol at B, and then riina 
maea him, and A tanw back, and in 
dfeoce kills B, it ia murder. Tliis I 
ffDod lair ; for A had a maliciniiB in* 
tf B, and hit retreat after he had dis- 
■ ^d1 at B, waa not becaose he re- 
I for his own aafety. 
tdnri, there are mutual passes made 
bt comhaunta, yet if there be oricnnal 
m» tlie parties, it b not the iiiter- 
'Uons will make an alteration, or be 
ilion cf the offence of killing. There- 
in if Maw|^idge had thrown the bottle 
fi^ and Mr. Cope bad returned ano- 

him, and kit nim, and thereupon 
^ had drawn his sword ami killed 

ft would have been murder. Some 
hat tliere is a diflerence betwocn the 

- that the assault by the pistol, and 
fa dud was express malice, but this 
lUce implied. Surelj there is no dif- 
sr malice implied is prepensed, as 
F there had been a proof of malice, or 

- some considerable time before the 
be stroke gif en, or an attempt made 
implied, is as dangerous as a stroke 
a malice expressed, therefore may be 
y resiMed. Thia very point was also 
i by the twelve judges at Serjeants'- 
hy them resolved to l>e murder upon 
BB ot my lord Morley 's Case. When 
Kieks another with a dani^^erons wea- 
mt any provocation, that is express 
"W the nature of the act, which is 
Fk flefinition of mulice implied is 
svx expreaa in the nature of the act ; 
ranan kills an officer that had autho- 
»irrest hin iierwn ; the person v»ho 
is defence of himself from the nrrest, 

fe Foster, in his Reports, p. 5rr4-5, 
Uwir ridge's Case, " lie, upon words 
letween him and Mr. Cope, threw a 
] great violence at the head of Mr. 
i immediatf ly drew his sword, Mr. 
nied the bottle with equal violence ; 
th lord Holt, lawful and jusiitiable in 
so to do: for, as he ari^ueSh a little 
:, He that hath shewn that he hath 
linst another, i«) not fit to lie trusted 
ij^eroiis weapon iu his hand." — I'pon 
! jud^e observes, '* It was upon this 

presume (and possibly , too, u|>on the 
ou p. touch ini; the arrest of a person 
pTcn a dangerous wound), that the 

in that ca«e of the marquis De 
irho stab?>e«l Mr. Marley sitting in 
• Annec3p. 16,) di^chnr«^e<l the party 
oppoMfd lo have <;ivtrn hini the mor- 

iVom all nmiinf^r of pmsecntion on 
at; and dechrcd the kiliin;^ to be a 
I necessary action/' Forruer Edi- 



A. D. 1706. 



f66 



is gailty of murder, because the malice is im- 

{died, for properly and naturally it was not ma- 
ice, for his design was only to defend hirovelf 



lesign 
from the arrest 



S. I come now to the thinl matter proposed, 
which is, to consider what is in law such a pro- 
vocation to a man to commit an act of violence 
upon another, whereby he shall drprive him of 
his life, so as to extenuate the fact, and make it 
to he a manslauQfhier only. First, Negatively^ 
what is not. Secondly , Positively, what is. 
First, No wonls of reproach or infamy are suf- 
ficient to provoke another to such a degree of 
anger as to strike, or assault the provoking 
party with a sword, or to throw a bottle at him» 
or strike him with any other weapon that may 
kill him; but if the person provoking h% 
thereby killed, it is murder. 

Jn the assembly of the judges, 18 Car. 9^ 
this was a |ioiut positively resolved. 

Therefore I am of opinion, that if two are io 
company tog;pthcr, and one shall give the other 
contumelious language (as sup|>osc A and D), 
A that was so provokeil draws his sword, and 
makes a pass at B, (B then having no weapon 
drawn) but misses him. Thereupon B draws 
his sword, and jmsses at A. And there beinr 
an interchange of passes between them, A kilb 
B, J hold tliisto be murder in .4, for A'spassat 
B was malicious, and what B aAemt'arda did 
was lawful. But if A who had been so pro* 
voked, draws his sword, and then before he 
passes, B's sword is drawn ; or A bids him 
draw, and B thereupon drawing, there haf»pen 
to l>e mutual passes : if A kills B, this wdl be 
but manslaughter, because it was sudden ; and 
A's design was hot so absolutely to destroy B, 
hut to combat with him, whereby he run the 
hazard of his own life at the same time. But 
if time was appointed to fight (suppose the noxt 
day), and accordingly they do ivjjit, it is inur- 
der in him that kills the other. But if thry go 
into the field immediately and fight, then but 
manslaughter. Muppose u|)on provoking Ian* 
guago given by li to A, A gives R a Im>x on the 
ear, or a little blow with a stick, which hap-^ 
pens to be so unlucky that it kills B, who 
might have some imposthunoe in his head, or 
other ailment which proves the cause of B's 
death, this blow, though not justifiable by law, 
but is a wrong, yet it may be hut manslaughter, 
because it doth not appear that he designed 
snch a mischief. 

Secondly, As no words arc a provocation, ao 
no affronting gesturt»s are KufK<:i<*iit, th'^u^h 
never so reproachful; which p«i»i "a* *^- 
judgttl, 8 Cro. 7/9, Wats and Biniui, in aL ap ■ 
peal of munler. 

There having been aqnarnl lMtwe.n A i^id 
B, and B was hurt in tlm fr.i> i »>»! about i»p 
davs after B came and iimmI. .» «•> iii«»ni- u 
A,' who thereupon striirk hu" "I"" "'* ^ ' *^ 
the leg, of which he iti«i..i.ilv «»i«d It "t^ 
murder in A, for tin- nllM.iiin.^i hini in ■ ■ 
manner was not any pinvm ttii«Mi to A, :; 

that violence to B : . ■ l t 

There bath bsen aii'»thi-» •■*■«. whict i 

F 



.1^^- 



«7] 



IS GEORGE I. 



halli been the occasion of some mistake in the 
dcHriiiion of qupstious of this kind, Jones 433, 
D. ^Villiams's Case, he being a Welshman, 
upon St. David's day hayin^r a leek in his hat, 
m certiiin |»cr8on pointed to a Jack of Lent that 
huoj^ lip Iianl l>y, &ud said to him, Look apon 
\oiir countryman ; at vihich D. Williams was 
much enras^ed, and took a hammer that lay 
upon a stall hard liy, and flung^ at him, which 
missed him, but hit another and killed him : 
he i%as indicted upon the statute of stalibing'. 
Resolved, He was not within that statute, but 
guilty of muuklauufhter at common law. 1 
concur with that jodijrment, that it is not within 
the statute of stabbi »(,>-, for it is not such a 
weapon, or act that is within that statute, nei- 
ther could he be found guilty of murder, but 
only «)f manslaughter, for tlie indictment was 
for no more. But if the indictment had been 
for murder, I do think that the Welshman 
ought to huve hren convicted thereof, for the 
provocation did not amount to that degree, as 
to excite him designedly to destroy the person 
that ga?e it him. 

Thirdly, If one man be trespassing' upon 
another, breaking his hedges, or the like, and 
the owner, or his servant, shall upon sight 
thereof take up an hedge-stake, and knock him 
on the head; that wdl l»e murder, because it 
was a f iuleot act beyond the proportion of the 
provocation, which is sufficiently justified by 
llallowa^ 's Case, who did not seem to intend 
so much the destruction uf the young man that 
stole the ivood, as that ho should endeavour to 
break his skull or knock out his brains, yet 
using that violent and dangerous action of eying 
him to the horse's tail, rendered him guilty of 
murder. 

If a man shall see another stealing his wood, 
he cannot justify beating him, unless it be to 
hinder from stealing any more ; (that is) that 
notwithstanding be ne forbid to take any, doth 
proceed to take more, and will not part with 
that which he had taken. But if he desists, and 
the owner or woodward pursues him to bea. 
him so as to kill him, it is murder. 

If a man goes violently to take another man's 
goods, he may lieat him off to rescue hit gtKMls, 
9 £: 4, :281, b. 19 Hen. 6, 31. But if a man 
hath done a trespass, and is not continuing in 
it ; and he that hath received the iniury shall 
thereupon beat him to a degree of killui^, it is 
murder, for it is apparent malice; for m that 
case he ought not to strike him, but is a tres- 
passer for so doing. 

Fourthly, If a parent or a master be provoked 
to a degree of pusion by some miscarriage of 
the child or servant, and the parent or master 
shall proceed to oorrect the child or servant 
with a moderate weapon, and shall by chance 
give him an unlucky stroke, so as to kill him ; 
that is but a min^enture. But if the parent 
or roaster shall use an improper instrument in 
the GorrcGtioo ; then if be kills the ehild or tlie 
servant, it is murder : and so was it resolved 
by all the judges of the King's- bench, with the 
eoBoorrMoeofthe JonI " "^'" ""'' 




Trial of Major Oneb^^ 

in a special verdict in one Grays' Case, lc= 

at the QUI Bailey, 10th October 18 Car. 8, 
removed into this court, Kelyng, p. 64. (ZI 
being a smithy B was his servant ; he c^ 
manded B his servant to mend certain 
belonging to his trade ; afterwards he 
servant being at work at the anvil, €hray 
his servant whether he had mended the 
as he had directed him. But B the 
having neglected his duty acknowledged 
his master ; upon which tue master wt 
and tohl him if he would not serve hi 
should serve at Bridewell; to which the 
vant replied, That he had as gooil serve in 
well as serve the said Gray ; whereupon 
said Gray took the iron-bar upon which 
his servant wns workint*', and struck his 
with it upon the skull, and thereby b^- 
his skull, of wliich the servant died. '"T 
was held to lie inunler; yet here was a ^ 
vocation on a sudden, as huddeu a resentos 
and as speedy putting it in execution; 
thou(;li he might conect his servant X 
tor his neglect and unmunncrliness, yet exec 
ing measure therein, it is malicious. £▼« 
one must perceive that this last is a &troii| 
case than this at bar. 

First, Gray was working honestly and fair 
at his trade, and justly calling to Lis serrai 
Un- an account of his business : this miFcreii 
was in the actual violation of all the rulni 
hospitelity. 

Secondly, Gray*s action was right as to th 
striking his servant by way uf correction ; kl 
the error was in tiie degree being too vioM 
and with an improper weapon. This uf Mas 
gridge was with u resolution to do mischief. 

Thinlly, lie liiul not the least provocatii 
from Mr! Cope, until after be had made tl 
first and daugenius assault, and theu nurwi 
it with thie di-awing his sword to second it, b 
fore Air. Cojie returned the other bottle. B 
Gray had a provocation hy the disappointmi 
his servant gave him in neglecting his busiuM 
and returning a saucy ausiier. 

The like in obstinate and perverse cbildre 
tliey are a great giief to jmrents, and wb 
found in ill actions, are a great provocatio 
But if upon such provocation the parent thi 
exceed the degree of moderation, and tberal 
in chastising kill the chikl, it will be raunk 
As if a cndgei in the correction that ii used I 
ofa large size, or if a child be thrown dov 
and stamped upon ; so said the lord Bridgm; 
and justice Twisden, and that they ruled it 
in their several circuits. 

5. If a man upon a sudden disappointOM 
by another shall resort violently to thatoth 
man's bouse to expostulate with him, and wi 
his sword shall endeavour to force his entraoc 
to compel that other to perform his promise, 
otherwise to comply with his desire ; and tl 
owner shall set himself in opjiosition to hii 
and be shal) pass at him, and kill the owner 
the bouse, it is murder, U Roll. Hep. 40 
Clenent agtinal air Charles Blanl, in an a 
peal of mordcr. The case wai| that Cleme 



] 






Matogrid^e^s Case, 

pnniKd a do^ to xir Charles Blunt ; and 
n^miH leconliii^ly to deliver liitn, re- 
nd bni die dnpr home to his house : at 
■rCbiriesBhint fetched his s\7ord, aud 
ti CleowDt's house i'nr the dog. Clement 
It the door, and resisted his eatry. Blunt 
fcilli Clement. The jury were 
nd fboDd this fart in sir Charles 
II be bot manslaughter. Doddrid^^ 
«M4|>fjroroplDion it %vas murder. But the 
" ^ intioe was a little tender in his di- 
litM jory. But Holls makes this re- 
Ifeilitwu not insisted u;ion by the a p- 
■■■AooodkI, that Clement was in the de- 
mm tf bit bouse, and that Blunt atucked 
ttllNtein: it was without all qnes- 
■■dcfithoo^h of a sudden heat, for there 
MSMBoh made by Clement upon him nor 
lyof bii friends, but all the violence aud 
ni€p sir Charles Blunt*s side. 
tbng Id tbeae particulars shewn what u 
I a BTOfoeation sufficient to alleviate the 
^al^ng, ao as to reduce it to be but a bare 
'nde. I viJI now, secondly, ^ve some par- 
rdtij aucb as are supported by autho- 
Wf aad general consent, aud shew what are 
imailoired to be sufficient provocations. 

fat, If one man upon an^ry words shall 

■bsBasaanlt upon another, either by pulling 

iB^tbeiiose, or tillipius; upon the forehead, 

■tfW that is so assaulteil frhall draw bis sword, 

■'iMDediately run the other through, that is 

!■ ■aasiaoi^ter ; for the peace is broken by 

iifOMMi killed, and with an indignity to him 

itt laerired the assault. Besides, he that was 

■ Aotted might reasonably apprehend, that 

bilkat treated him in that manner might have 

iMifvthfr design upon him. 

Tmk ii a case in Stiles, 4G7, Buckner's 
flat Buckner was indebted, aud B and C 
■■r to bis chamber upon the account of his 
■vitBria demand the money, B took a sword 
ktt kaag up, and was in the scabbani, and 
iMiattbe door with it in his hand undrawn, 
I krtp the debtor in until they could send for 
ftadiff to arrest him ; thereupon the debtor 
nk oat a dagger which he had in his pocket 
id Blabbed B. This was a special verdict, 
id atfjudged only manslaughter, for the debtor 
■a iokulted, and imprisoned injuriously with- 
M any process of law, and though witliin the 
ardsot'the statute of stabbing, yet not within 
c reason of it. 

fettoondlyy If a man's friend he assaulted by 
oChfT, or engaged in a quarrel that comes 
bhiws, and he, in the vindication of his 
Old, shall oo a sudden take up a mischievous 
■rament and kill his friend^s adversary, that 
bat nn«DsUught«r : so was the case, 12 Rep. 
[. If two be fighting together, and a friend 
[ike one takes up a bowl on a sudden, and 
ik it breaks the skull of his friend's adver- 
ry, ef which be died, that is no more than 
BHhO|{bler. 80 it is, if two be tighting a 
■I, Ihougb upon malice prepensed ; and one 
■M and takes part with him, that he thinks 
■f kite tbe dindTaiUage in the combat, or it 



A. D. 1706. 



[70 

I may be that he is most affected to, not know- 
ing of tlie malice, that is but manslaughter, PI. 
Com. 101, John Vaughan and Salisbury. 

Thirdly, If a man perceives another by force 
to be injuriously treated, pressed, and restrain- 
ed of his liberty, though the person abnsed doth 
nol complain, or call tor aid or assistance ; and 
others out of compassion shall come to his 
rescue, and kill any of those that shall so re- 
strain him, that is manslaughter, 18 Car. 2, 
adjudged in this Court upon a special verdict 
found at the Old -Bailey, in the case of one 
Hugett, 18 Car. 2, Kelyng, p. 59. A and 
otbors in tbe time of the Dutch war without 
any warrant impressed B to serve the king at 
sea ; B quietly submitted and went off with 
the press- masters ; H^igett and the otliers 
pursued them and required a sight of their 
warrant ; but they shewed a piece of paper, 
that was not a sufficient warrant : thereupon 
Hugett with the others drew their sword j, and 
the press-masters theirs, and so there was a 
combat, and those who endeavoured to rescue 
the pressed man killed one of the pretended 
press-tuasters. This was but manslaughter ; 
for when the liberty of one subject is invaded, 
it affects all the rest : it is a t>rovocation to all 
people, as being of ill example and pernicious 
consequeuce. All the judges of the King's- 
bench, viz. Kelynge, Twisi^en, Wyndhaiu und 
Moreton were of opinion, that it was murder, 
because be meddled in a matter in which he 
was not concerned : but the other eight judges 
of the other courts conceived it only man- 
slaughter, to which the judges of the Iviug's- 
bench did conform, and gave judgment accord- 
ingly. 

Fourthly, When a man is taken in adultery 
with another man's wife, if the husband shall 
stab the adulterer, or knock out hJH brains, 
this is bare inunsluuglit(*r ; lor j( alousy is the 
rage of a man, and adultery is the hii^hest in- 
vasion of property^, 1 Vent. 168. Baymond 
213, I^lanning's Case. 

If a thief comes to rob another, it is lawful to 
kill him. Aud if a man comes to rob a man's 
posterity and his ftimily, yet to kill him is 
manslaughter ; so is the law, though it may 
seem hard, that the killing in the one case 
should not he as justifiable as the other. Lev. 
XX, ver. 10. ** If one coininitteth aduhi^ry 
with his neighbour's wife, <'ven he the adul- 
terer and the adulteress shall be put to death." 
So that u man cannot receive a higher provo- 
cation. But this case bears no proportion 
with those caMos that have been adjudged to be 
only uianslausfhter, and thrrefore the Court 
being so advised doth determine that Maw- 
gridge is guilty of murder. Mure might be 
said upon this occasion ; yet this may ut pre- 

* in such a case the Court of Justiciary in 
Scotland admitted the wife of a piuiuel upon 
his trial for nuirder to give evidence that the 
pannel discovered the deceased in the act of 
ndnltery with her. See Christie's Case. 
ai'Uurin N** 92. 



71] 12 GEORGE L 

sent safBee to Mt the matter now ia question 
in its true lii^bt, to shew how necessary it 
is to ap|>ly the law to exterminate such noxi- 
ous creatures. 

Upon this confiction the Court did direct 
that process should be issued against Maw- 
gridge, and so to pnicecd to outlawry if he 
cannot be retaken in the mean time. * 

The case was, VIr. Cope (a young^ branch 
of tlie Co[ics of Rrains«*l, in Hampshire, harts.) 
havini; i^ot a lieutenant's c«)mmiss:on ;in the 
guards, invited some officers and other geutle- 
men iodine with him at thu Dolphin tavern in 
Tower Kire«ft, June 17, 1706i in order to wet 
bis commission ; one of the gentlemen t«K>k 
Ma^reridge aloiiif with him, telling him he 
would be as welcome to Mr. Cope us any of 
the company ; upcm that he went, and after 
dinner wa« over, and paid for by Mr. Cope, 
they all staid a while longer, and hud more 
wine brouifht in, and paid half a-cro«vn each 
for their club ; then they broke up, ami most 
of them went away ; but Mr. Mawgiidge and 
the rest being invited by Mr. Copt: to the cuard- 
room in the Tower, went with him, and callrd 
for wine. Two bottles were accordingly 
brought ; and as they were dnnking, a coach 
came to i\\q guard- room door with a woman 
in it (of no very mudest behaviour), and asked 
for capt. Cope ; whereupon he and Mawgridge 
went to the coach door, and brought her into 
the guard-room ; where havinje been a*while, 
she cried, Who shall pay ror my coach ? 
Upon this Mr. Mawgridge said, I will, and so 
discharge<l the coach ; then he offered to salute 
her, but she ^rejected him, and gave him ill 
words ; to which he made returns of the like 
kind ; on which lieut. Coiic took the woman's 
part; and then Mawgridge demanded satis- 
laction of Mr. Cope, in order to iirovoke him 
to tight, &c. iko, and killed Air. Cope. Upon 
tliis Mawgridge was tried at the Old -Bailey in 
July 170(3, for the murder, and a special ver- 
dict found, wherein ail the particulars are re- 
lated, as before- mentioned: — But before the 
arguing the special renlict, he ma<le his escape 
out of the Marshalsea, where he was confined ; 
and that night went to his father, major Maw- 
gridge, who with his wife (Mawgridge's 
mother-in-law) washed and rnbbed him all 
over with green walnut shucks and walnut 
Hquor to disguise him, and then all three set 
out in the night, and walked above 30 miles 
into Essex, where the father gave 100 guineas 
lo a master of a Tessel, near Colchester, to 
carry him safe to Holland, which he did ; there 
be was concealed above a year and half; for 
though he was a very hanusome man, he was 
80 disfigured scarce any oue knew him; he 
spoke French and Spanish generally and mighty 
well ; but at last lieing at a tavern in Ghent in 
Flaudera, and a little too merry, he spoke Eng- 



Trial of Major Oneby^ tfc» 



[ 



lish so fluently, and by some expressions 
dropi, became suRpected, seized (a large : 
ward having been offered for apprebendi 
him), and on examination found to be the m 
who killed Mr. Cope, was brought over 
England in March 1707-8, and being brou| 
to the King's- liench bar, received sentence 
death, and was executed at Tvbum, on \V< 
nesday, April SB, 1708, with William Gre| 
for high-treason.* The ordinary says, Ma 
crriilge went in a coach with him (and Gregu 
a Klt^ge) to Tyburn; '' That he submit 
ivillini;ly to his sentence, owning the justici 
it, though he declared he had no premediti 
malice uGrainst the gentleman he so uof 
tunately killed. He said, he heartily repen 
of it, anil praved that Goii would wash away i 
stain, and deliver him from the guilt of tl 
blood which he had so shed. He owned t! 
he had been a very great sinner, but was m 
that he had any ways offended God and m 
and begged pardou of both. That he boj 
God M'Ould siiew him mt^rcy in another wo 
{>ecanse he was always giieving for his si 
and particularly for this, ever since he I 
made his escape ; and though he had no 
prehension of lieing brought lo condeuinal 
here for it, it was still continually liefore h 
and the remembrance of it was painful to b 
He made strong resolutions to live i»therw 
and was always prayin:; to God to pardon h 
and to keep him for the future, tie ackn< 
lodged the justice of God had overtaken h 
and would not suffer him to live long 
punished for tliis heinous crime: He decli 
his being in charity w ith all the world, e 
with those who had brought him to this 
puniiihment, and prayed for the conversion 
all wicked persons, desiring they would t 
wanting by him. He told me, he was ak 
40 years of age, boni at Canterbury oi g 
parents, and brought up in the Church of E 
land; that b(»tli his father and ancefst«>rH 
had the honour to serve the crown for aiNive 
vears as drum- major; and that he him 
had received a very good educatiiNi, 
brought up genteelly, though he was lor a c 
siderable time kettle-drummer to the first ti 
of guards, and was a going with a commisi 
into the army when this melancholy acci< 
happened." — Major Mawgridge, on hi« s< 
execotion, which hail no great an effect on I 
could not be prevailed on either to eat or di 
for three nights and three days, and n 
about like a madman ; he afterwards beha 
at times like one distracted, drawing his 8w< 
and threatning to munier his wife, obliging 
to kneel down for him to stab her. Sec. and 1 
relenting. In short, he was never afW.r eaa 
in his right senses ; movipg about from plac 
place, though he lived to near 80 years of < 



* fieo bit CMe» tqI. U, p. 1971. 



m 



Trkl tfJamt Carttq^ 



A. D. 1738. 



C74 



4^. TIk Trial of Jaues Caknegie, of Finhaven, before the Court 
of Justiciary (in Scotland), held at Edinburgh, July 35, for 
the Murder of Charles Earl of Strathmore: 2 Gkouce II. 
AD. 17S8. 

Cob Jwmiim, S. O. N. Bwi* Irnta in no- 
mtammim Doom Burgi de Eilinburgl) 
MMaaialoDM Henui Jnlii, HtJIerimi 



t^lmmmtmnam ngaitoo ocuto, per ho- 
mmA» TirM AUaniuai Cockburne de 
QnaMan, Jonimriuin Clericum, Dd- 
■ JaeeboiB HuikcDSie de Roy*toun 
~ " Tmmm CaUarwood dc Pvlbnin, 
■ DiTidem Enkina Je Dud, 
I Gmkerain Pringle de New- 
hi, « Hngklniin Andmin Fletcher de 
KIbb n, CommiMiaii trio* J otticiariB, diet. 

CiiTM legitime affirmato; 

Ibmi Curtice of FiahaTm, prisoaer io tbe 
UMfa vF EdiDbiirgfi, paoDcl. 



TEDa 






lofStntbrnore, end Mr. James 
Ifi^ knther-gennui and nearent or kin to 
AidMCMi Charlea carl «f Strathmorr, with 
— aiMaadal tbe iiwlanceaf Dancan Pi>rbnr, 
^ fe iaijriij'« advocate, for hia bigliDeai'i 
Mnttifbrlbe crime of wilful and premedi- 
t^mmitr committed by bim upon the penun 
if Ac nid Cbarln earl of IStrallimore, as is 
MnfriljoiPnliunH in the indictment raiwd 
■fMhin tbrreanent, which is as liillnwH : 
B of FinhaTei 



I iiitoTdbM.ih uf Gdinbuttrh. vom 
' mittmfl. at ttiP inilaiice of Siiinn 



icteil 



•fteilhiFiure, and Mr. Jiinirs Lyi 
l^^n and oenrett of kin lo tbe dpceawil 
CMrlnnrlot Stnilhmarc, ntih conrnnrseHnit 
mUtrmtttnc* n\ Dunnn Forbrs, wq. hi* ma- 
f9j't a^TOL-nte, for his hi[{line«s'ii inieiv«l : 
tatabere. by the laws of Gud, tbe tan ol nn 
■vp, tbr rommnn law, and the manicinal law. 
■d practtcr nf ihii kiiiKdom, as well at ilit- 
Iswt of all well-if"*erD«d realm*, wilful eod 
fnneditate murder, anil all mnrdcTand homi- 
ng, or heini{ art and part ibpreol', ere moai 
•tpiaaiii crime*, and ivrerely punishable ; ypl 
>*eit t<, and nf verity, that yvu hare prenumeil 
m ciHiimti, and are i;iii1iy, actor, art and 
fan.uf ill, iir nne fir other ot ihefnTi-said hiirriil 
CTAra: in ao tar at, hailnfr BCausrlMs ill- villi 
■d reitentment agaiott (hedeeesttCliariPseiirl 
rf Ktraihmore, you ganceired a deadly hutred 
■d malict! airatuit him ; and shaking; otf all 
fear of God, and regard to theforesaiil Iniiilalile 
hwi, on Tbunday the Wh o)' May, in thin pre- 
■aiyear, 1738, or one or othemftlie day* ol 
ftr aid nwiitb, about the Imiir of eight nr nine 
'fllic night of that day, or some other hour iif 
lUi day a* oigbl, npon the alnel of the town 



of Forfar, within the coanty of Forfar, you did* 
with a dtawD aivord, or aoriie oilier oBeDwre or 
mortal weapon, wilhoul the leant cokiur or 
cauM of proTOcation then giren Ly bim, iurada 
tlie aaid ileceatt earl, who Lad no weipon )h hta 
hand, and did basely and felonioutly munlCT 
and kill liim, by giving him a wound Iherewillt 
in the belly, some inches abote the naTel, 
which, by following (he ihrutl with a second 
push, weDt thruaghiheintestkiiesaDd iheback, 
a little tower than where the said weapon ^- 
tered the belly : nf which wound, alter gnat 
pain, on Saturday immalialelv thereafter, or ■■ 
some abort space Ihereafter, he died ; aod so 
was cruelly and barbarously murdered by yon. 
At least, althe time anil place aboie-meniioDcrf, 
with a drawD iword, or some other mortal 
weapon, without any juat canie or pro*ocalion, 
yougaTetbeaaiildpceaslCharleaearlofBlral^ 
more a wound in the belly, which reached 
through the iniestiDea anil lack, wherelhrougb 
be aoon at)er tell down, and died at tlia tiiM 
loretaid. At least, at the time arid place abot* 
described, the naid Charlea earl uf Sirothmora 
was wi(h a drawn iwonl, or aoine other ileailiv 
weapon, feloniouKly and barbarnwdy woundaJ, 
and of tbe said weuud died within a few daya 
ihercafier ; anil yiiii were art mid part io hia 
murder. Ity all which, it is eviiltnt, that vou 
are guilty, arl ami part, uf the crimes of wiirul 
und premeditate murder and humicide, or ono 
nr other of them, at the time and place, and in 
the manner abore set foilh. And which fucta, 
or part tlierenf, nr your beiflg art anil part of 
anv of the said rrimeR, being Ibunil proven by 
ihe vcrdirKif.inaiiaixc, in iireiciii-c of llie lords 
jiistice fffMifral. juhlice clerk, and commit- 
aiooera orjuitii-inrv, you iiui;hl lo be exempla- 
rily punisiieil wiih the pains of law, to iho 
terror of others to commit the like in lime coiu- 

Puriiiert. — Mr. Duncan Fnrhea, his majes* 
ly'it advocate; Mr, Churles Afeskine, his ma- 
jesty's siiliciti'r; Mr. Atex. Hay, advocate; 
Mr. Patrick (iratil, advocate; Mr. Georgv 
OKilvy. ailviH'H e ; Itlr. .Ii.hn Ut;ilvie, advo- 
c:i(e ; Mr. Hii^li l>alr_\mple, adviTute, 

PrivuroluFs in Dffenet.—yU. ttobert Dutf 
JlIs, sdvucate; Mr. .lumps Ft<rt;usson, senior, 
ailviicate; Mr. John Forbes, udvncale; Mr. 
n'illiam (iianl, admcule ; Mr, Janiea Pater- 
son, advocate ; Mr. (Jeorge Sinolk't, advocate, 

Tbe libel lM>iiig Ofii-nly read in court, and de- 
bate vini race, in presence of thp lords, ihry 
orduioed biiih parliea lo giv« in their iiilormn- 
I tionii tn the clerk of court, iu order to be re- 
corded ; tbe pursuers to give in thein agaioil 



»J 1 GEORGE II. 

Sklunlay next ; ■nd ihe panDel'i procuralon 
lo tfive in bib Kgainit Friday therealW: uid 
continued the caoie till Iho lit dij of Aiignit 
next to cume, at oiDe o'clock ronniin^c; and 
onttined ivitneasefl and asaiBera to attend alihtt 
time, each penoa, under the paiu of latr ; and 
ordained the pannel to be carried back ta pri- 
«m ; and granted aecnnd diligence for tbe |iur- 
■uets against the witottu*. > 

iMrORMATION for So**KN« C0UDt<« of ^RATR- 

HORB, and Mr. James Lton, Brotlier- 
tferman to the deceawd Charle* Earl of 
Slrathmore, and bia Majeily't Advocate 
(or Ilia lliglinen*Blntere«l,aEaiDitJkTnes 
Caraegie of FlabaTen, PanD^. 

The said James Caroegie is indicted and ae- 
•iiseil as gnillv, art and part of wilful and pre- 
neklilatc murder; at least of murder and homi- 
cide : in so far aa, upon the 9lh of May laat, 
npon llie atreela nf Furfar, with a drawn aword, 
Ik wounded the deceased CharlrK earlof filratfa- 
mnrc in the belly, some mcbesBboTelhetiavel ; 
nhioh tvouLiil went Ihruug'h tbc iotesiines and 
the back, a little lower than where the «aid 
ffcapou entered the belly; of which wound he 
died soon after, 

Tbe indictment, in the (int plare, charge 
the fact a* proceeding from a causeless ill-will 
and resentment the panncl bad cooceired 
against tlie defunct, who, at the time the wound 
was given, bad done nothing that could be pre- 
lendMl Bs a colour or cause of provocation; and 
a circumstance ia noticed, from which it may 
be inferred, that there was deadly hatred aorf 
malice ; namely, that after one push there waa 
a second, whereby the wound went quite 
through his body. 

There is e second branch of the indictment, 
in which the circumstances of premeditate ma- 
lice and forethought felony, needed not to be li- 
belled ; and he is chargeo only with murder or 
koniicide, aa seiiarately relevant. And, lastly, 
art and nart is charged upon bitn. 

At calling befitre the lorda of Justiciary, 
a^inst the first t»«Dck of ihe iodictmsnt, it 
was eicepted, ■< That the indictment was ino 
genera), particular circnmslancea not being ex- 
pressed from which the causeless ill-Mill or ro- 
■eiittneot meutinned, and forethought and pre- 
meditate malice could be inlerrcJ, whereby the 
panoel was deprived of the heueGt due lo all 

(innels, wheu tried for their Hie, lo exculpate 
ims«If, by shewing, that if at any time, prior 
Id the lime [iientiuoed in the indictment, there 



reconciliatinn and entire friendship :" AuJ it 
was said, " That general libels ought not to be 
sustained." 

Ta this it was answered. That a prctiuns 
grudge is charged, and that the deceast was in- 
*adea without the least ctdour or cause of \in- 
TOcatiou ; which is the stroni^cat evidence of 
foictbougbt, npecially when joiuni witb tbi* 
Mhir putinilar, that thw first tbnut wu fol- 



Triat ofjamet Carnegie, 

lowed with a second push, which was &. i 
uf inveterate and relentless malice ; and It 
was sufficient to chargo a previous qnari> 
general, which would be made appear Ity 

Siroof. Nor will it be found, that in Ubtr 
iirethanght felony, it is usual ornecessDr, 
libel all tbe circurostances from which 
forethought may be presumed, especially w 
the ipeciti facti is chart'ed iu tliat mauKr^ 
affiirds the presumption of farethought, leM 
forth, that the wound was given withonl 
least colour or cause of provocalinn on tbe p 
of the defunct at tliut time. Neither can ic 
thought unfair with regard to the pannel, 9 
if he had eny relevant ground of exculpalis 
would hare access to prove frienilship witb t 
defunct, to take off any charge of preeeda 
quarrels, whereof lie could nut be ignora 
And still there must be less ground of cot 
plaint, where no good reason of exculpatioa 
offered, whereby the panne] can be allowed 
adduce proof, which it is believed is, witin 
coniraihclion, the case upon Ilia first bnncfc 
the libel. 

As tu tbe two last branches of the indil 
ment, it was allqied, <' That several circu 
stances attending tbe fact complained of m 
concealed, which, when opened, afforded ll 
pannel plain and obrious defenoea ; and tba 
fore it was infortnad. That tbe pannel, a ps 
sun disposed to peace, and in entire friendsk 
with the defunct, chanced to be in compai 
with him about the time chaived in the indii 
ment, with one John Lyon of Bridgelon, m 
others: that firtdgeton gave him t^e faigfai 



the pannel was in hazard of perishing, bail 
extremely drunk : that getting up, heated wi 
liquor, and so extremely provoked, he drew I 
iword, and pursued Brirlgeton, and that tbe i 
funct thrusting himself between them, casual 
received tbe thrust aimed at another." 

From tbeao circumstances, it was pled I 
the pannel, "Thatif he did kill the defunct, 
was a mere misadventure, raiher a misfortu 
as [than] a fault, and in no event could suhje 
liim to the jirno ordtnuria ; fiirthat, Imo. . 
these circumstances had he killed the said Jol 
Lyon of Bridgeton, thepain of death could n 
"iBve been inflicted either by the law of Go 
he common law, nor by the municipal law 
Chiskingdum, neither by the laws of other we 
^overnM realms ; pariicularly by tlie laws 
our neighbouring nation, in regard the fact w 
done of sudilenty, by a peivoa in diink, ai 
highly provoked." 

And, Imo. As to 'he lavr. of God, chap, x] 

. 13, of Exodus was appealed lo, where it 

lid, " that if a man lief nt in wait, there w 

I he a place appointed whiihrr hesbould fly 

hich seemed lo require forethought, Ai 

IC xxxvth chap, ot Numbers, ver. as, wbe 

was said, " That if any one thrust anoth 

suddenly without enraiiy, the congtegstk 

— - to judge between tiio slayer and the n 

rerofhlwd;" fron whick itwtMJdiea 



fir iktMwriiT qfihe Earl nf Strathmori* 



A. D. 179& 



in 



dHgbterof HuMcntj was not punishable 

lAii it was aniwerady that in the law of 
Aegfoeral rale waa, •' Wboeo sheddeth 
hmti, hj man aball his blood be shed : 
iAe hand of man, and at the hand of 
^Mi*! brother, and at the hand of every 
avilbe life of man to be required/* Geo. 
fik That by the law of Muaen, death of 
■kf was plainly capital ; nor had the 
itft the benefit of the city of refuge, 

etbe slaughter was mere misfortune, 
, which was plainly the meaning of 
■riiiB Exodus, ** If a man lie not in wait, 
H Mirer him into his hand ;'* which 
iHivith any propriety be understood of 
fhto committed, where the intention and 
p'aHecedit ictum licet non congrcssum.' 
rflkii matter b clear] v exphiined in the 
^ of Numbers, where he who smites 
■ Bitmment of iron, is called a mur- 
I lad where it is said, <* That he who 
ivitb a throwiufi^ stooe, or with a hand 
Btf wood, wherewith a person may die, 
idK, the marderer is surely to be put to 
' And then the law proceeds plainly to 
f OSes, where death ensues from strokes 
■H of a weapon not deadly, and there 
MS indeed hatred and enmity ; but if it 
mddeoly and witliout enmity, or (which 
■kible) in the OSd Terse, «' With any 
■herewith a man may die, seeing^ him 
ri was not his enemy, nor sought his 
; then the congregation was to judge be- 
ie slayer and the revenger of blood." 
ahich it is plain, that slaughter upon 
ij, even without forethought or previous 
't VIS capital by the law of Moses, if 
sod was given with a lethal [deadly] 
I, except when it was tlone ny mere 
Lu by throwing a stone whereby a man 
k,the person who threw it seeing him 
iriso at no time was his enemy, or sought 
m. And this is the case mentioned, 
iz, rer. 4, Deut. where it is said, ** Who- 
iflu his neighbour ignorantly, whom 
sdnnt in time past" (which is limited by 
aple immcniiately sulijoined to homicide 
asiial), <* shall fly into one of these 
uid lire." Now, in the present ca^e, the 
of tlie weapon and of the wound are 
d clearly exclude founding with any 
upon the disposition of the law of Moses, 
the <]uestioii were of the pannel's 
i( the benefit of the ett v of refuge. But 
is it an arg^ument of nny force to plead, 
iere the benefit of tlie city of refuge 
allied, that by the Jaw ot nature the 
WM not capital ; for the revenger of 
ould never hav» been tolerated to kill 
; the city of refusre, where innocent 
ras spilt, whereby the laud must have 
lluted, and the stil>j(.>cts were permitted 
, so notorioiiKly to break in upon the es* 
d Jaws of nature ; and therefore, 
it is an argument of unavoidable tbrce, 
itraver, by the law of Moses, capital 



Iiunishments are allowed, such punishments ara 
awfnl: But the argument is not of equal 
strength, that where the powent of the law wer^ 
suspended by the jui utjfii established by posi- 
tive precept, that therefore, in countries whera 
there is nu such privilege, either by tlie laws of 
God, or the laws of the land, that there tha 
pnniahment is not to be capital, where the jug 
asyii could have been claimed. 

2do. It was contended, '* That by the com» 
mon law, not only dolus bnt propontum wai 
necessary ; and that slaughter committed isi- 
petu et rixd were not to be punished capitally.*' 
And to this purpose, the authority of the lean- 
ed Voet, was cited, who seems to say. That 
in rud, if the person cannot be discovered who 
gave the deadly wouud, the ordinary punish- 
ment ahonid not take place. 

But when this matter it considered, it ia 
plain there arises no good ar]gument for the 
pannel from the common law: For tbongb 
tbeva is a difference to be made' between pra» 
potiimm and machinaiio prameditata, and aud- 
den passion and beat of drink, determinmg tht 
will to commit the crime ; yet as laws were 
made and became necessary, chiefly from the 
depraved passions of mankind, they cannot af- 
fonl a sufficient excuse against the ordinary 
punishment of an atrocious crime ; and there 
IS dolui^ when a crime is even committed of a 
sudden, although there be no forethought: fete 
it is commonly said, that op|M>rtunity makes 
the thief, and theft is committed impetu^ never- 
theless not without dole. Nor is it necessary 
to prove or libel a forethought in the commis- 
sion of the crime. In the same manner pas* 
sion or provocation may unfortunately deter- 
mine the will to the commission of a horrid 
crime ; but it would be of dangerous conse- 
quence to allow of bloodshed under colour of 
passions which men ought to subdue, or of 
drunkenness which they ought to avoid, or of 
a sudden vicious turn or mind ; and therefore^ 
in the Roman law, whoever committed 
slaughter dolo malo, whether deliberately and 
upon forethought, or of suddenty, was to be 
punished ex lege Cornelia de Sicariis . And to 
shew that it was sufficient, that the design 
should only precede the act from which death 
followed, and not the meeting of the persons, 
as the acts of the mind are only to be known by 
external circumstances ; the kind of weapon, 
in the same manner as in the law of Moses, was 
sufficient to found a presumption of sui!li pro- 
potiium, as, joined with the act of killing, 
brought the manslayer under the pcena legis 
Cornelia!: So in the 1. 1, § 3, ff. ad le|vem 
Corneliam de Sic. it is said, ** Si giadium 
strinxerit, et in eo percusscrit, induhitat^ occi- 
dendi animo id eum admisisse ;'* and if prior 
forethought had been necessary, the kind of 
wea|K)n could not possibly have foundinl a suf- 
ficient presumption : But as it manifestly made 
appear the intention io kill, whether thai intiMi- 
tion had its birth from passion or drink, it «%as 
voluntary slaughter, done dcditd vperd^ Hud 
tiierefora to be pnniiihed capitally. And the 



TO] 



9 QEOKG^E II. 



IVial ^Jamtt Carni^t 



[ 



fUiMge cited from the learned Voet, rather I 
lNHi6nii« this doctrine, That if in rixd, which 
nuaC auppoaeauddenty, the peraon who inflicts 
•d the mortal woand wan diaoovered, he waa to 
be aubjected to the ordinary paniahment And 
the aame author, § 9. of that title, obaerres, 
That though aucb aa commit alaugbtcr, calore 
irmcundUf may be aaid impelu deUnquere; 
yet there, " neque judicium, neqne aaaenaua 
•oimi, Deque foluntaa deeat ;" and saya, That 
A peraon profoked bv verbal injuries, how 
great eoever, waa not nee from the p^ena ordi" 
iiaria. And the truth ia, if paaaion and pro?o- 
eation were aufficient to excuse alanghler, K 
were in ?ain to lav down the rulea ao anxioualy 
conceited in the lawa conceminfr the <* mode- 
ramen inculpate tutel»," where the alayer 
muat proTe that he waa " conatitutoa in peri* 
culo Tite.*' And had the caae atood otherwise 
in the Roman law, it could never hare been 
doubted, when jealousy waa the rage of a man, 
and adultery the higheat provocation a-^inst a 
husband, and a real iniury ; the qneatioo could 
■ever have been stated to be determined by the 
emperor, aa in L 38, ff. § 8, ad le|pm Juliam de 
adult. Whether a husband, ** impetu tractus 
doioiia, uxorem in adulterio depreiienaam in- 
lerfecerit," was liable to the poena legia Cor- 
Beli« de Sicariis P And who, by that decision, 
upon the peculiar circumataucea of the case 
wtta ezeemed [ezempteil], and never ihelesa 
made auhjenl, si loci kumilii, of being condemn- 
ed ad opu9 perpetuum, and if honestior was to 
be condemned rtlegari in iusulam. But as the 
case muat be determined uiion the law of Scot- 
land, il ia unnecessary to dwell too long upon 
the argnmenta drawn from the Roman law. 

3tio, It was contended for the pannel, " That 
by the law of Scotland, slaughter and monler 
were of old different apeciea of crimea, and 
only murder committed upon forethought fe- 
lony was properly computed murder, and 
punished as such ; btit tliat alaugbter com* 
mitted upon suddenty, or chaud tnelle, and in 
rijrA^ was deemed only homicidium culposum^ 
and not punishable by death." And to support 
tliia position, several acts of parliament were 
appealed to, by which it was statuted, that 
murder was to be capitally punished ; kmt chaud 
mellff or slaughter comtxiitled upon suddenty, 
waa to be punishable according to the old 
laws : and that in this case, if the pannel bad 
even killed Bridgeton, at whom he aimed the 
thrust, in the circumstances above set forth, it 
waa not murder u|Km forethought, but upon 
iuddenty and high provocation. 

To this it was answered, That thia doctrine, 
so directly contrary to the received opinion, 
had little countenance from tite old lawa and 
acts of parliament, less from the constant 
practice before the act of parliament king 
Charlea 2, in the year iG61, and stood in plain 
contradiction to tliis last law, and the constant 
practice and repeated decisions of the Court of 
Justkxary from that time down to tbia day. 

By the old kw, particularly chap. 3, of the 
ifttitalatea of kiag Robert 1, intitUed, Men 



condemned to the Death ehonid not be i 
deemed, ** It ia statoted and ordained, |fif a 
man, in any time Coming oc bygane, is co 
vict or attainted of alaugbter, reif, or any otli 
crime touching life and limb, common joati 
shall be done upon him, without any n 
some." Here slaughter in general is mc 
tinned, and justice waa^o lie done upon t 
person convict of it, and the punishment 
Uie title was plainly dcAth : tof that, at coi 
mon law, alaugbter in ti^eneral waa capH 
The next Mtragraph does indeed save the kiuj 
power (which muat be the power of pardonim 
and the liberties granteil by the icing to I 
kirk and kirkmen, and other lorda; whi 
muat be underatood of special immunities 
the caae of manalaughter: for no privilege « 
to protect againat murder upon foretbougl] 
and the exception confirms the rule. 

By chap. 43, of the atatutea of king K 
bert 3, it is atatuted, " That na man uae ei 
destruction, hershipa, burning, reif, alaugfat 
in time to come, under the pain of tiuel 
life and gooda :" whereby the pain of del 
ia clearly made the puniahment of alaugbi 
in general. And in toe im mediate subseqoi 
chapter, the aheriff was to take diligent inqi 
aition of destroyers of tlie country, orencn 
had deatroyed the king's lieges with herahij 
slaughter, &c. and was to take bail from tbo 
if arrested, to compear at the next justii 
ayr ; and if bail waa not given, the sheriff a 
to put him to the knowledge of an aasiz 
'* And gif he be ta^nt with the assize for < 
an trespassour," it is said, " He shall be ofl 
demtieu to dciath :" which seems only 
relate to manslaughter, and not to mort 
upon forethought telony, which was one 
the pleas of the crown, to be tried ouly beA 
the Icing's justiciar ; as i* evident from dH 
11, kiog Malcolm S's laws, and chap. 1 
and 15, whereas slaughter might be tried 
the aheriff, where there was a certain aocus 
as appeara from book 1, of the Uegiam Al 
jestatem, chap. 1, § 7, 8, 9. 

There are sundry others of the old statut 
that seem plainly to pre- suppose that alaog 
ter was capital, and particularly these of Ale 
ander 2, chap. S, § 3, 4, 5, 6. And so Ske 
in his Treatise of Crimes, tit. 2, chap. 6, sa] 
'* Tliat alaugbter in rixUf or chaud meiie^' 
generally punished by «leath, and confucott 
of the moveable ;;:ooda pertaining to the tn 
pasHOur; but with this dilforfcuce, that t 
girth or sanctuary wan no refuge to him w 
commits slaughter by torethoiight felony, I 
he should be delivered to the judge ordmai 
to undcrly the law:" which plainly appei 
from act 23, pari. 4, Jamca 5, whereby nil 
ten of girth are ordained to deliver up su 
peraDus as are guilty of murder upon foi 
thought felony. An(l it is in vain to foa 
upon Law 90, |Nirl. 6, James 1, which m 
in the end, ** Gif it be forethought felony, 
shall die therefore;" because the act relatei 
ail manslayers; and though that partiea' 
and moii atrocioai ipeciei be mentmied, 



t/J Jar the Murder qfihe Earl of Straihmore. . A.D. 1728. 




Ar winch the ma i J e ie r shookl die, yet 
■ffonmC will not hold, that therefore no 
rad of sUoghter was capital : for it is 
aaiii iu the geoeral, that if the slayer is 
with red hanil, the law shall be done 
pitfaia that son ;. which cannot be 
of a crime not capital. And sir 
Maefceoane, iu his obserr Ations upon 
lysg **Tbis may seem to imply, that 
4k mi for murder committed wifchoat 
felony ; but this holds not in our 
BMirder, though committed without 
-^hft fehiny, is punishable by death, 
eem/L k vas either casual, or in self-defence." 
Tie act 51, pari. 3, James 1, was im- 
pnpsrij fiwiided on by the pannel's procura- 
IMS ; Mr that act does no more than extend 
Ibt Mbesee between forethought felony and 
dmad wteUe to all transgreisions as well as 
imklar; as sir George Mackenzie obserres 
^pi that law, where he says, That cJiaud 
■kar hamieidiwn in rixd commissum, is ca- 
lU if oar present law. 
^ crimioals who resorted to, and took 
in charchca, had protection, thou|[h 
tnmta were capital, is eitremely plam 
chap. 6, of the statutes of K. Alez- 
f, where it b said, ** That thie?es and 
who fly to haly kirk, if moved with re- 
he confess that he has heavily 
I for the love of God is come to the 
of God for safety of himself, he shall 
nee in this manner, tfiat he shall not 
fife Bor limb, but restore what he had 
ad satisfy the king, and swear upon 
Evangel, that for thereafter, they shall 
* BMumit reif nor thef\ ; but if he declared 
" ianocent, he was to be tryed." And 
ii 4i Imi paragraph of that chap, it is said, 
**U9nn» noanslayers, &c. if tbey fly, in 
nascr Aresaid, to the kirk, the law afore- 
mHikaHhe kept and observed to them." 

Awe seems to have been this other dlflfer- 
■ee MO, by the books of the old law between 
■arte' upon forethought and slaughter, that 
iW Inal of murder was summar, whereas 
■saiiaaghter could not be tried till af\er forty 
^yi, as appeals by the statutes of llobert 2, 
fcwa cbap. 3, to chap. 9. 

After the Reformaiioo, when i\ie jus aiyUy 
Watffiy given tu churches, dro|ipeil, the dis- 
liacfaoB between murder and inauslauf^htcr 
«is looked on with less attention, and libels 
•cieoommonly framed indifferently, for mur> 
^, aod slaughter in general, without any 
■tatioo of furethought felony ; nor was it 
ecr objected, that malice or premetlitate ile- 
^ was requisite to make the crime capital : 
M erimiojiu were punished to death, where 
the proof there was not a colour or pre- 
of forethought, or any premeditate de- 
as will appear from looking into the 
. — ofadjournai. And many instances nii^ht 
wgifco, particularly in the case of Jean 
famt ajFaiDst William Eraser, the last of 
My, ifrii ; where the pannel was condemned 
^ as rstrajudicial confession, admiiiicu- 
«UL XVII. 



lated with other circumstances ; in which he 
set forth the fact, that the tiefunct and be had 
some little quarrel about a staff; and hearinir 
that lie had murdered hia brotiier, he came 
into a house where the defunct was ; and that 
either the defunct, or some other tliat was by, 
took the pannel by the arm, to hold hiiu: 
having freed himself, he aimed a stroke with 
a whinger at the defunct's arm ; but missing 
it, he stmck the defunct about the pap ; and 
upon this, proof, he was found guilty, and 
executed. 

In the case of Bruce agrainst Marshall, the 
Srd April, 1664, slaughter was libelled, and 
he was condemned upon his own judicial 
confession : from which it appears, that he 
was so far from having any forethought, that 
he suffered not only the greatest provocation 
in words, but was even oeat with hands and 
feet by the defunct while he was on the 
ground; but at last getting up, and (as the 
confession bears) being overcome with passion, 
he drew a knife, and struck at him in two 
several places of his body, whereby be died. 
And upon this confession, where there was 
tuddenty, provocation and passion, he was 
brought in as guilty, and condemned to be be- 
headed. 

The law remaining somewhat ancertain con- 
cerning casual homicide, and there being no 
longer any beneflt of girth as formerly ; ia 
the year 1649, an act was passed during the 
usurpation, for removing all question and doubt 
that might thereaAer arise in criminal pursuits 
for slaughter, onlainini^, that the cases of ho- 
micide aAer-following, viz. casual homicide, 
homicide in lawful defence, and homicide com- 
mitted upon thieves and robbers, should not 
in time coming be punished by death, not- 
withstanding any laws or acts of parliament, 
or any practick made heretolbr*?, or observed in 
punishing of slaughter. And this passi'd int«> 
a law after the Jtestoration in the ^car 16(31 ; 
and at the same time, all decisions given con- 
form to this act, since the 4th of February, 
1649 years, are dcrlared to l>e sufRcieut to 
secure all parties interested, as if the act had 
been of that date ; which was necessary, be- 
cause the acts tiurin^f the usur|>ation had been 
rescinded: and tiiis law has ever been looked 
upon as the standard. And the practice of 
the Court of Jusiiciury, since that time, clearly 
deuionstrates, that slaughter of suddenty, and 
slaughter upon provocation, which could not 
be brought under one or other of the particu- 
lars there mentioned, have been taken to be 
capital. 

The procurators for the pannel here <d)serv- 
ed, ** That though in the cases there mention- 
ed, the law oi-dained slaughter not to he capital, 
yet it neither SHid, nor supposed, that the for- 
mer law, whereby paunels were entitled to 
plead afi;ainsi a capital punishment, was there- 
by abrogated, but only statuted in the caves 
there mentioned." 

Tu this it was answered, that the iiarrativs 
of the statute was for removing ot all ^utfttioa 

6 



88] 



1 6EOR6E IL 



Trial of Jamei Canui^ 



[81 



•Bd ionU thit may Mmt thereaAor io eriumial 

riuits fortlaughier, nd oooKqoently cumol 
nppottd to liATe left doabCfol cases, ihat 
the paimel'f proeonton Hiiist adnil were 
not so dear as easaal bomieide, and homicide 
ia defeace: nay, the law seems to suppose 
prdty plain ly, that all slaoghter by the laws 
and actfc of parliameDt, or practicks, was capi- 
tal, not declaring what was law from any other 
period than the year 1640, but eiiactiog' the 
same with a nan obftmnttf and judging it neces- . 
sary to confirm the decisions that had past, 
conform to that act dnriog the usurpation, 
which would bare been rain, if it bad not 
been at least doubtful, whether casual homicide, 
homicide in lawful defence, and slander com- 
miitod upon thieves and robbers, did not sub- 
ject those guilty to the pain of death : and if 
those degrees of homicide were so much as 
doubtliil, it is not possible to conceire that 
ekaud melUf or slaughter committed, dedM 
oper£t though without IbrKhought, was, by the 
law of Scotland, not capiul. Or if it should 
be supposed to hare been doubtful, whether 
tliese last dej^rMS of homicide were capital : 
that the legutlature, upon a narrative, that all 
question and doubt that might arise hereafter 
in criminal pursuits for slaughter, should be re- 
moved, would have enacted in the clearer cases, 
with a fion obiiante, and left the more difficult 
In the dark, as surely the greatest advocates 
lor slaug^liter on snddenty must admit, that, at 
least, it is more culpable than either homicide 
Bicrely casual, or homicide in lawful defence. 

The argument drawn from the rubrick of the 
act, which mentions degrees of casual homicide 
only, can conclude no more, than that the title 
Is imperfect ; and it would be resting too much 
upon an argumeot d rubro, to make it defeat 
what is said in the law, that all questions con- 
eeminfi^ slaugliter were thereby to be removed, 
and which opposes casual homicide to homi- 
cide in lawful defence ; and conseouently can- 
not under the u'ords, '* casual homicide," com- 
nrtlieiid all slaughter not upon forethought fe- 
lony. And sir George Mackenzie in his ohser- 
yations upon the act takes notice, that the title 
is very ridiculous, and consequently no argu- 
ment can be drawn from it. 

One thing it may not be improper to notice, 
9s, that if killing by forethouglit felony was the 
only species of slaughter capital, the crown 
was disabled from pardoning any capital 
slaughter w hats«f mover, which does not appear 
to have been tlie o|iinioii of our lawyers. 

As to the drcisious subsequent lo this law, 
they will he found entirely agreeable to tlie 
doctrine now laid down ; sir George Mackenzie 
observes, that though many lawyvrv are jiosi- 
tive, that though homicidium in rira, even 
where the author of the plea {» known, may 
by ihii rigor of law hv punishcil by death, yet 
that no contitr}' ii^c^ litis rii^or ; yet he remem- 
brrcd, that in William [ioiigluss*s case, this 
was urged, and albeit it was not proven that 
he was the killer, Vf^ the assize found him 
4(oiIty,.aiid ht thcc«i](iuD died. This is a case 



nsore fiivooraUe, than where the peraon thil 
gave the mortal woond is known, tfaMHi^h gtwm 
suddenly, and even upon provocation; wai 
therefore shews what our law is, and with 



little reason the procuratora for the nan»d 
maintain their argnment upon the law of Seat* 
land. 

In the case, his majesty's advocate agwMl 
Nioulsoo, the 24tb June, 1673, murder «ad 
slaughter, without forethought, were cbaifd 
upon Nicoisoo, the pannel $ and hia p i o o — 
tors pleaded the benefit of the act of parliaml 
anent casual homicide, in the aef eiml 
thereof, he being in a condition that he 
not able to remmiber. To this it was 
ed, that the defence was not relevant, in 
the homicide could not be said to be 
such as Uie case of throwing of stones mm 
dikes, and accidentally killing a paasesfvi 
and the pannel having afterwards propooed € 
defence, that being in use to carry a gwB ss'ii 
fowler, and calling accidentally for meat ts li| 
dogs at a mill, the defunct fell upon himy sal 
offered to secure him as a French soldier, sslt 
to be one ; in the stm^e, his gun being km 
bend, went off, and killed the defnnct: ~~^ 
the libel and defence were found relevant, 
it appeared upon the proof, that Nicolsea 
drunk, and that there was no previous qiisnrii 
but taking exce|»tion at somewhat the drfsMl 
said, he shot him with his gun ; and bv ihi 
verdict of the assise, '< he was fonml gnfty d 
the slaughter committed u|M>n the defqncl/j 
and sentenced to have his bead struck off.lv 
the Grass-market ; which shows that n si l h^ 
drunkenness nor suildenty is a relevant dffiMJ 
against the jMtaa ordinana in slaughter. 

And, in the case of Murray contra GiM 
10th June, 1678,- Uie lords '' found the IM 
relevant, and that there was no necessity of sq 
distinct probation for pro? ing precogitate atij 
lice;" which clearly shows that slaughM 
other than upon forethouglit, was capital. Am 
to show that provocation and passion ars. ail 
received as defences against the ptma 9rdmm 
ria, a multitude of decisHHis might be bremi^ 
particularly in the case of Aird, who was m 
dieted in 1693, for the slaughter of AgWi 
Bayne, having given her some strokes oo ds 
side and belly with his foot, by which sb 
fell into fainting-fits, and immediately disd 
The defence was, ** great provocatkm and e» 
sual homicide :*' provocation, in as far as shi 
threw a chamber pot in his face ; and whea hi 
gave her hard words, she and her neighboM 
fell upon him, and beat him ; upon which % 
gave her the strokes above mentioned. And i 
that trial it was argued, there was no snisil 
occidendi^ no previous malice, no mortal wea 
pon; and the texts from Scripture urged I 
ticfencc of the present pannel, and the arjga 
ineuts from the civil law, and from onr m\ 
acts of parliament, were urged : neyerthcb 
Uie lords <* found the liliel relevant, rsfil 
the defences ;" and, upon the proof, he i 
sentenced to die. 

In the case of Williaa Ganaichael ie 108| 



•] Jar the Mturierofthe Bart ofStratltmore. A. D. 17S8. 



[W 




WM fonnded mi to excuse a p€mm 

and Ibffethoagbt wst neither libelled, 

I ; and the loide found the libel rele- 

L ■poB the proat'y he was sentenced to 

1095, Qeoige Cnnring^, writer in 

raa indicted for the crime of moro 

lUffhtcrof Patrick Falconer; the 

' oBeted for the panael, upon the 

tba old law, between forethou|rht 

rl/e, were offered; nevertheless the 

Wbh foond relevant, and tlie assise re- 

lariavcrdietgniltyof manriaughter; upon 

sAiih ha was coodemncd to die. 

MthacBseaf Burnet of Carlops, the S2d 

htmru 17 llf thosgh adefonce was sustaiued, 

l< * si fts l withowl foretlioni^t was found re- 

ImsI: md in thai of Hainiltoa of Green, the 

Sib Jane, 1716, the pannel offsred to prove, 

An ha was aeddeBtally at the house of Tho- 

. of whose murder he is accus^i, at 

iihellcd, with some of his acquaint- 

p .ad had no deadly weapon aloo||f with 

tof that hm became inebriated to a great de- 

pBbSBd havii^ left the house, and returned to 

itti the slip or cover of the sheath of a sword^ 

ii drfanct gave him most indecent, injurious 

■i HBrrihuH laugnage, and persisting in it, 

poshed, or struck at him with his 

having the scabbard thereon, that he 

• to beKeve had a crampct upon it: 

_ nil] more and more provoked by re- 

IM^s^iioaa words, to protect himself from 

Mhv iiwalfiice he had reaaun to look for, the 

pssi tfiU raosaiiiiii^ on horseback, the de- 

mm iwhad bimseU upon the sword. And 

tkii orcHBistantiate fact was offered to be 

f. Nevertheless the libel was fouod rc- 

IwM^aaA the pannePs baill dcfencus re|>clled, 

■^ spOB ibe prcMif, was sentenced to have his 

^ud swwcd from his body : and was accord- 

t'Uaded. 
iheeaae of Thoouis Rots and Jaifrey Uo- 
kM% the SOth July, 1716, it was pled tor the 
isneli, that being recruits lately come from 
Mi^mi to Scotland, and not knowing the way, 
Ihey Mkcd the defunct tbe road to ^inbun^h, 
^' ' ' to shew it, and one of tbe |Min- 



Mb cxp(«talating with him, why he treated a 

th( 



c: 



so, that came to serve the king ? He 
very disrespectful words with respect 
lahis saajesiv ; and one of the pannels having 
' bioi Tiflain for such opprobrious ezpres- 
be caoie up to Ross, and with his fist 
bin a blow on tbe face, and then pulled 
down to the ^ond, and beat him with a 
slidi, to the immioent danger of his life, 
f. That he should never go alive out of bis 
c and Roberts having come to his assist- 
, aad lesooed him a little ; Ross, tbe pan* 
fate the dcAioet a wound with a knif^, 
Mof be died. Ross pleaded, there neither 
■ar eoald be forethought fokm v, or nreme- 
■ Baliee, agahist a^ person whom lie bad 
V sees before: thai it was committed upon 
ttiinty : thai be had the highest provoca- 
t^bnh iMhal mi mIj Neveitiw)M> by tbe 



interlocutor, Ross, the pannel, his giving the 
wound was found relevant to infer the pain of 
death. And tlie defence from provocation by 
words, and receiving a blow on the face^ bch 
ing pulled down to Uie ground, and beat with 
a great sticJc to the danger of his life, jointW 
sustained relevant to restrict the libel to an arbf* 
trary punishment, was found to be elided by 
the reply, that, at the time of giving tbe woand 
te the defunct, the defunct's bands were behi 
by Jafirey Roberts, the other pannel. From 
whence 'tis evident, that slaughter upon sud« 
denty, in rvrd or chaud melle^ and by a person, 
who had received the greatest verbal and real 
injuries, even beyond that of being thrown into 
the kennel, of the nature that is set forth into 
which the present pannel was tbroi^Hi is by that 
interlocutor found homicidium doloium^ ami not 
cuiposttm^ but capital. 

And, in a very late trial, in the case of Da- 
vidson, the soldier, slaughter n|Hin the greatest 
soddenty was sustained, and he was upon the 
proof executed. 

And the judgment given in 1717, in tbe rase 
of Brock and Lindsay, determines this point be- 
yond all dttipute. These pannels were ac- 
cused of the murder of one Anderson : and ai 
the libel did expressly set forth a quarrel and a 
struggling betwixt the two pannels and tlic de- 
funct, which made it ilirectly an homicidium in 
rix& ; 80 the pannels, at least Lindsay, offered 
a pretty strong defence, namely, |liat the de- 
funct, without any provocation, just led them, 
and struck at Lindsay, and beat liini down to 
the ground ; and it was while thi'y were on the 
ground, the wound was given. And tbe de- 
fence was pled for two several pur|iotics : First, 
that the crime was not capital, because no fore- 
thought felony. And, 3dly, to entitle them to 
the act of indemnity, under which all homi- 
cides were included, except willul murder, and 
slaughter of forethought felony. And the in- 
terlocutor uiion the relevancy v%asinthir words, 
" Find the pannels, or either of them, at the 
place and time libelled, their giviug Archibald 
Anderson a cut or wound in the neck or throat, 
or other mortal wound, with a knife or other 
mortal weapon, where<if he, the defunct, soon 
thereafter died ; or that the said pannels, both 
or either of them, were art and part therein, re- 
levant to infer the pains of death, and other 
pains libelled : and re|)cl the liaill defences for 
the ]>annel, excepting that defence pled u|>on 
his majesty's graciouti act of indemnity ; nuent 
which the said lords 8upersede«l to give their 
judgment, till the conclusion of the probation, 
and return of the verdict." 

This then is an undoubted authority, that 
homicide may, by the law of Scotland, infer the 
|iain of death, though it be neither wilful mur- 
der, pro|Hfrly so Hpeuking, nor furethonsrlit fe- 
lony ; otherwiKe the Court could not have found 
the crime relevant to inter the pains of death, 
and at the same lime reserve the consideration, 
whether tliero was any forethought felony, or 
not. 

Upon this interlocutor a proof wna adduce4e 



87] 4 GEORGE II. 

and a verdict returned, finding Lindsay, one of 
the panneh, guilty ; and yet the Court havinj; 
returned the cousidcratiun of the indemnity, 
found him inlitled to the benctit of it : that is, 
in other uronlv, they found the crime was nei- 
Ibrr voluntary munler, nor slaughter of fore- 
thought ielony. 80 that it m plain, had not the 
indemnity intervened, Lindsay must have suf- 
fered death for killing, though there was no 
previous design of forethought. 

And an iiitcrlocntor H)>on the relevancy, 
nmch to the same purpose with the former one, 
was also pronounced, the 31st of August, 1721, 
in the case of Samuel Matthews, a soldier ; 
where the libel was found relevant to infer the 
pain of death, reserving the consideration of 
another act of indemnity then pled for the 
pannel. 

It would be in vain, and lengthen a psper al- 
ready too long, to run through all the decisions 
which shew, that neither the drunkenness of 
the nannel, nor provocation given him, nor the 
suddenty upon which the fact was committed, 
can afford a defence to the pannel, to exculpate 
the slaughtei', or lessen the ordinary punish- 
ment ; and therefore the pyrsoers shall leave 
the first branch of the defence with the lords, 
with this observation, that if it is really founded 
in law, by looking into the books of adjournal, 
one would think our law has hithertp been very 
ill understood. 

Sdo, It was ofi*ered, what indeed is alone ap- 
plicable in the present case, " That if the pan- 
nel intended only to wound or kill Bridgeton, 
and by misadventure the deceast earlof fiSrath- 
more was wounded, and of that wound died, 
the pana ordinmria was not to be inflicted.'^ 

It was answered, that according to the rules 
of the civil law, he who intending to kill one, 
kills another, is nevertheless subject to the 
p<na ordinaria ; so Julius Clams delivers his 
opinion in his Receple Sententifs lib. 5. § 
homiciilium, N. 6. where, aAer having taken 
notice, that the contrary was indeed the opinion 
of some, adds, ** 8ed cert^ ego si casus contin- 
geret, illi facerem caput amputari." And the 
learned Mathipus, lib. 48. lit. de Sicariis, § 12. 
^ives the same opinion, observing that the act 
18 consummate, there is animus or design of 
killing, and death: tliatit would be aridiculoua 
defence, that the pannel intended to steal the 
goods of one man, but happened to steal those 
of another ; or against adultery, that he in- 
tended to defile one man*8 wife, and happened 
to light upon that of another « and he thinks it 
is as unrcusonable to hope for safety from this 
defence, tlint the iiiraniug was to kill one, but 
another receiveil the stroke and died. 

Voet in his commentary agrees with them, 
lib. 48, tit. K, ne. 2, where he says, that there 
is ro diilemct;, " Sive vulnua in titium di- 
rectum ab eo declinatum, Mievio in proximo 
•tanti Jethale fuerit, sive dianiqne oocidatur qui 
csedis impediendcB causa, aese medium inter 
agressorcm et defendentem interposuerit : quia 
pnevalet, quud principale est, nee error talis 
t^Ui^iBt 96cide&di aBioioDi amcadea kge 



Trial of James Camegief 

Cornelia vindicandam." And for this ne 
founds upon the I. 18, § 3, et § ull. ff. de 
and 1. 5, s. 1, ff. de servo corrupto ; bn 
the authorities of Farinacius, qua»t. 1 ' 
15G, et 157, as also, that of Fachinseus, 
zovittsand fierlichius, and others. An 
opinion obviates the defence, as put in it 
favourable light, which however would 
very delicate proof, that the defunct 
himself between Bridgeton and the p 
and receivcMi the stroke aimed at the othc 

The learned Sande, lib. .5, ti^. 9, dc 
which has this title, ** Qui alium pi 
occidit, nihilominus ordinaria, leg. C 
poBn& afficiendus," says, after agreeing 
according to the Roman law, such error 
not have excused the murder, ** Hoec sei 
ubique usu obtinuit, et secundum eam, r 
mortem condemnatus etdecapitatus est,' 
November anno 1621; and there alleii^ 
authority of Gomesius, Emanuel, 801 
Carolus Moliooeus, " Qui alios cumuli 
his book ad consnetndines Parisienses. 
sir George Mackenzie in his Criminal 
Murder, i 9, says, after stating the qu 
" Yet 1 think he should die, seeing the > 
of killing a man, and not any particular r 
murder ; and the killer intended to defac 
Almighty 'a image, and to take from the 
subject." 

It is nothing to the purpose, that some 
authors who write upon the Roman la 
of a difi*erent opinion, in a case not detci 
in words by the text, when the bulk 1 
commentators are of the other side, th( 
recent and of greatest authority ; and v 
appears to be received as a rule by the p 
of nations, that the ordinary punishment 
be indicted. And it may not be impro 
observe, that the cases where lawyers < 
from the received opinion, are generally 
tifiahle homicide, that is, where the bys 
was killed, when the killer intended to e 
his purpose in lawful defence, and not 
micidoi culposo, which is the highest tlu 
nel's case could possibly be pled upon pn 
tion, according to any opinion delivered 
strongest advocates for the question the 
pleads. 

That it is not always necessary, that \ 
tention should be directed towards the ro 
done, in order to inflict the pain of death, n 
evident from looking to the xxi. chap, of 
ver. 22, and 83, where, " If a woman will 
is hurt when men are striving, and m 
follow ; life is to be given for life.'* A 
kind of killing now in question was plain! 
as, according to the law of Moses, woii 
have intitled the slayer to the benefit • 
city of refuge: For thouirh in the xir 
of l>eut. ver. 4, " Whoso killeth his neif 
ignorantly, whom he hated not in time 
is said to be intitled to that privilege ; y 
is limited immediately with an exam 
manaUugbter merely caaual. - 

The proenrators fiir the pannel in 
«« That Ibia kind of kiUing wai inttrdy < 



m 



Jar the Murder of the Earl of Strathmore. A. D. 17^ [90 



bfwd, and witboat the intentioD of the party : 
1m m the caw of Musod, in the year 1674, 
T CariopB, ami several otheni, where it 
there was do intention to kill, the pu- 
mitiieateii." 
k«iaaanrered,That where, from the nature 
I, and meant by which the wound 
^ivtai taking all the circumstances to- 
hoe was no eridence or presumption 
fsancl intended death to any person 
; and the propontum was neither 
■or oonld be presomed, as in the case 
jind in that of Burnet of Carlops, 
having swords, only struck 
, h was held as approaching towards 
homictde. But tliat can never be 
I, when the wound given as libelled 
swas clearly mortal, and the instrument the 
Mrt Icfbal [deadly]; and the decision of 
Mipa, cfCD with that difference, stands single 
kftabsaks of adjournal. 

Ilvas fiirtber contended for the pannel, 
^Hkh animuM oceidtndi^ and death follow* 
1% tn admitted to be necessary, in order to 
in the highest punishment ; so as from the 
mentioned in ezculpation, it is 
there was no intention against the de- 
Aod it cannot be known whether the 

ei dea^irn was to kill Bridgeton, since 
not killed, or if the wound w<Mild have 
liMBvtal, bad thesword reached him ; and 
MH^BOCly the necessary reqnisites to const i- 
ftiiaaBnler, were not to be found here." 

h was answered, that the invasion with a 

—Id w e ap on , with which the defunct was 

yu,«as a sufficient proof in law that the iii- 

ndw iolraded to kill, since death followed ; 

■i ibtt there is no wounding by measure, 

HtcRtuiy not to kill. The act implies chlus 

isdndice, which, with death following, makes 

■■ds; inihout any farther proof of an act of 

lirai^jlikill ; and tbere would have been as 

Uretideoce that the pannel intended to kill 

Bri^noo, if be bad actually received the 

■•viand died, because it was possible the 

tsvri night have pierced farther than he in- 

fesdid ; and if lie did not design to kill Bridge- 

l"a. Mil killed the defunct, he must have been 

6eper>6n against whom the mischief was di- 

icned. As indeed it may be argued from the 

fi^and drunkenness pled in excuse and de- 

nee, it is possible that er rabie he intended to 

Ul vhomerer he met with ; and if rage from 

fiKino 3Ri| drink is alloweil to palliate iininier, 

I iiioipouible any one can be fiafe. And tiiet^e 

wif drciimstances, without which the defence 

bs Bot a colour, roust, at the same time, give 

that the |innners intrniion o\' {uir- 

Bridgeton with a sword, was to kill and 

him ; for be pleads them to excuse his 

of the defunct, as sufficient provocations 

feisdte him to it. 

Tbc law of England was freqiirntly inen- 

^fi by the procuraturs for the |tannel in the 

llHdiag, as what won hi Justify Mic orgnnients 

^a^^htfor tbem ; and |>aiticularly it was said, 

^TkA lU kiiliog of a suddenly' by tliat law, 



was only manslaughter, and not mnrder." But 
the contrary will appear, by looking into 
Hawkins's Pleas of tiie Crown, book 1, cliap. 
31, of Murder, where he clearly distiaguishes 
between deliberate murder, audi murder con- 
mitted on a sodden : And in this last case, ma- 
lice prepensed is, by the law of England, often 
implied, as lord chief justice Keylinge* lays it 
down, Begina v. Mawgridge, and justifies it 
by the case of Hollo way, who espying a hoy 
that came to cut wood, took him, and tied hiio 
to an horse's tail with a cord, and then gave 
the horse two blows, whereby he run away« 
and broke the boy's shoulder, whereof he dieo; 
which must have been sudden, and was ad- 
judged murder. And p. 130, he supposes A to 
have been provoked by B, and to have drawn 
his sword, and made a pass at him, when B 
had no weapon drawn, but missed him ; there- 
upon B draws his sword, and passes at A, and 
tliere being interchange of passes between them^ 
A kills B. I hold, says the author, this to lie 
murder in A, for A's pass at B was maUdooa^ 
and what B aflerwards did was lawful. Here 
is both suddenly and provocation, and yet, in 
the opinion of that great lawyer, it would have 
been held murder. And in the present qoestioOy 
neither Bridgeton, nor the deceased, had any 
weapon drawn. 

And to shew, that according to the law of 
England, the aiming at one, and hitting ano- 
ther, does not make death follo\«ing man- 
slaughter ; in the end of the next page he sets 
down the Case of Dr. Williams, a Welsbmsui 
who having a leek in his hat, upcm 8t. David's- 
day, a certain person pointeil to a Jack-of-Lent 
that hung up hard by, and said to him, *' LOok 
upon your countryman!" At which Dr» 
Williams being enraged, toftk a hammer that 
lay u|K>n a stall hard by, and flung at him, 
wliirh liitanotlier, and killed him : An<l though 
being indicied upon the statute of stalibing, it 
was resokeil he was not \«iiliin that statute, 
because of the kind of weapon ; ** Yet," says 
the author, *' if the indiiiiiient had been for 
niunler, 1 do think that the Welshman ought to 
have been convicted thereof. "f 

And since the pannel's procurators insisted 
so much upon the law of England, the pursuers 
cannot but mention the authority oi one of 
those lawyers, as to one of the cases they them- 
selves stated in the debate ; Hawkinv's Picas of 
the Crown, chap. 31, in fin.: The case is. 
That a |)erson shooting; at tame fouls with 
intent to steal them, arcideutally killa a man ; 
that Jiithor .".ays, ^' TliHt it is agreed it would be 
murder. i\\v\ not mnn«l:night**r." 

* So in the Furinn Edition. But it appears 
that chi<'f justice HoU is intended SceMaw- 
griilpe's Case, p. 57, of tins Volume. » 

f Ixinl Chancellor Bacon is in this opinion 
of Hawkins expressly : See Vol. 4, (Edit. 
1740) p. 41, on explaining this maxim offing- 
lisli \\\v\ ** In criuiinalibus sufticit generalis 
maliiia," &c. \%here he states cases very similar 
to the case here argued. Farmer Editum^ 



91] 2 GEORGE IL 

It is troe iodeed, that it would appear by the 
law of Eogland, as laid down in tnese reports, 
thai if there is pro?ocatioD, io some partica* 
lar cases, sufficient to alleviate the act of kill- 
ipg, it reduces it to a bare homicide. But 
then DO pro? ocation from words is ever sus- 
tained, nor CTen assaults, hst upon this ground, 
that he who was affronted or asssaulted, might 
reasonably apprehend, that he that treated him 
in that manner might have some farther de- 
sign upon him, which resolves the matter into 
a kind of self-defipuce ; and in this the law of 
England differs from tlie law of Scotland, 
which requires, in order to lawful defence, and 
killing under the notion of danger from the 
assailant, ** ut quis sit constitotus in periculo 
▼itse." But then there is no pretence of ap- 
prehending dangerous consequences, when the 
party killed, or intended to be killed, was flving, 
and had no weapon, as in this case, and the 
passion in such circumstandes resolves itself 
simplv into revenge, which no law ever sos- 
tained to alleviate or palliate murder ; for there 
the malice prepensed is clear and evident. 

But then, if it be conridered in the present 
ease, that the party affronting or invading, is 
not only set forth to have fled, and to have had 
BO weapon in his hand, but that he escaped ; 
what colour is there, upon these principles, to 
alleviate the killing of a person interposing to 
prevent the mischief, when there was no re^ 
aistance upon the part of any person wliatso- 
ever, as in the case of a combat, and where 
it was voluntary as to the person giving the 
wound, in regard he could have stopped when 
Bridgeton fl^, which cannot be said with re- 
gard to. the Welshman who threw the hammer. 

To (conclude this matter, it appears pretty}evi- 
dent, the circumstances offered in exculpation 
afford, by the law and practice of Scotland, no 
relevant detence, suppose the person kilted had 
been the provoker, much less m the case where 
the person killed ^nerously interposed to pre- 
vent the mischief, having given no colour or 
cause of pn>vocation, having no weapon, and 
where the person, against whom the invasion is 
said to be meant, was without drawn sword, 
and flving : the murder in these circumstances 
must nave proceeded either from rage and re- 
Tengc, which no law can ever favour, since 
laws were made, and judges appointed, that 
private persons should not attempt judging in 
their own case, and to Inridle the unruly pas- 
sions of men, or from set purpose and design 
to kill tlie defunct, from former resentment 
And what adds to the presumption of the last, 
is the nature of the wound, quite through the 
body, and that the sword went tlirough tlie 
back lower than where it pierced the belly ; 
which excludes all possibility of pleading, that 
the pannel's stumbling might have pushed il 
forward, because by the nature of the thing, 
bad he stumbled after the sword bad pierced 
the defunct's body, it must have raised the 
foint of the sword, so that it eoald not bare 
pieroed loaier in the hick than-in the belly. 

VpoatiM fist kMch eC the libdi thepor 



Trial of James Carnegie^ 



c 



\ 



suers think it unnecessary to open the pu 
cular circumstances from whicli the panne 
causeless ill-will and resentment may appi 
against the defunct ; that is matter of evidea 
and upon which no interlocutor in the rm 
vancy can pass, and must lie in tlie breasv 
the assize; and against this relevancy no 
ception, or colour of exception can bepretena 
to lye. And as to the separate relevancy, 
art and part, vi bat is offered to be proven, ■ 
the defunct thrust himself in a manner a. 
the pannel's sword: as it is of too ddia 
proof, and was repelled in the case of Hamta 
of Green, it is believed the lords can hava 
regard to it And as for the drunkenness 
provocation, especially where the provoc^ 
IS said to have been given by a thinl partir 
it were sustained, it must turn up wliati.:: 
been thought tlie foundations of the laap 
Scotland, and stand in opposition to all 
practice that can be discovered from the b^ 
of adjournal. And the allowing such defea 
as might possibly have some colour in th» 
of England, to be proven, would be of daa 
reus consequence in the law of Scotland, w fa 
the pursuers are tied up to a precise relevanc 
so that the procedure in that part of I 
island, in trials of this kind, unless the wbi 
form of trial were adopted in our law, won 
open a door for leaving murders unpunishe 
The law of Scotland alone can be the rols i 
this case ; though, at the same time, it is h 
lieved, that the ipecUsfacti, as set forth by ik 
|»annel, would be suliicient warrant for a va 
diet of murder, even according the laws ai 
practice of England. In respect whereof, b 

CllA. Ar£skins. 

Information for James Carnegie, of Finiiati 
Pannel ; against Susanna, Countess i 
Stratliniore, the Hon. Mr. James I^ 
Piirsuere, and his Majesty's Advocate,! 
his llighness's interest 

The said James Came<iie, of Finliata 
stands indirted before your lordships of wiM 
and premeditate murder andhonucide; ini 
far as, having a causeless ill-will and resH 
meut against the deceased Charles, earl i 
Strathmore, he couceivc^d a deadly hatred si 
malice against him ; and (on the day libelle 
" did, with adrawn sword, without tlie leasts 
lour or cause of provocation then given by Ui 
invade the said deceased Earl, and diil oase 
and feloniously murder and kill him, by i^vii 
him a wound therewith in the belly, when 
he soon aUer died. At least, at the time ai 
place described, the said Charks, earl of Stva^ 
more, was with a dmwn sword, feloniously ai 
barbarously wounded, and died of the sa 
wound within a few davs thereafter ; and th 
the pannel was art and part in this murder 
And the Indictment concludes, ** By all wbii 
it is evident, that you are guilty, art and pii 
of tlie orimes of wilAil and premeditate mupi 
and homicide, or ene or other of tliem» aV II 
timeandplait|.aMlui tbttnuner abof* i 
l«th.« 



If/* 




fjfiU Murder of the Eari ffSitaihmore. A. D. IVxh. 

pMd «M t i — Mb t to ym ImMuf^ alwi j« ymmmiM, nnd iAi»i «M *.^f* 

■*f Uibcf Joljciinvatfto^lctti tA woht mymi^ymft, m^tim i/# a^ IvHif tiM «* 

be sppcand — rfer ibat um m • faukty, «r>l b<M • ^^mj^u ;iih^*mi m«4 

of apinl »ivk 4mj tul^wi o^ Umm^ W if*** p««.# w*«fc ••• 

!■■ aifJilmaaB Bort be Um^mi^ wmmiot, wa^M t*^ mpMI^ h^^f4 •*• »»m»»# 

•beU«Dd«f'Eoe. TWk ImS. «■ Wi^«*tiM MM «••* '•^'jr |(^«* 

CMC fv 1H» flbUl^ »*^* iHli^aai %k 1^ (V^ !«« 

ial «r 1 aM ^ ma mi fii— «iia iir^« i-ji {:•««» :A*'nii «u^:ft «^f ^^^ ^« 

*l^-. W tfMUilMiqf c-vaa fMA» l«^:« • *-^^/ 
1» tut in» M» » HB—<«« Mil 1*^ W^JUtt K-tf^oft «/ 4 





•ff 






t.t 



»5-. «..S-. 



• AM'rf 



95] 



2 GEORGE 11. 



used ?ery great rudeness to the lady 
in irhose houwtliey were ; particularly, when 
ahe in cif ility offered him a glass of brandy, 
he, seeing the nannel already overtaken with 
drink, desired the lady to *j^ve it to him, her 
lirother ; and upon her saying that her brother 
did not seem to want it at that time, he grip- 
ed lier by the arm so rudely, as to make her 
complain, and swore, by God, her brother 
aitlier should drink it, or she should drink it 
herself; and persisted in this way of doing, 
tall the lord Strathmore thought it proper to 
break off the visit, and so went out of the 
house. 

*'That Finhaven and Bridgeton followed 
the Earl ; and when they came to the street, 
some words passed, and Bridgeton used the 
ezpreision, * God damn him,* meaning the 
pannel, and with that gripped him by the 
breast, and pushed him into a dirty kennel two 
feet deep, over head and ears, where, in the 
condition he was, he might have been smother- 
ed if a servant of the Earl's had not helped him 
out, who at the same time expressed his indig- 
nation at the action he had seen, by these 
words addressed to Bridgeton, * Sir, though 
* you be a gentleman, you are uncivil.' 

" That Bridgeton, after having so flung the 
paonel into the kennel, leaving him there, 
walked forward ; at the same time turning 
about, and folding his arms across his breast, 
acomfully laughed at him in that condition. 

*< That the paonel being helped out of the 
kennel in manner foresaid, immediately drew 
his sword, and, in a just passion, pursued 
Bridgeton with a staggering pace: and Bridge- 
ion ran towards the earl of Strathmore, whose 
back was then to him, and endeavoured to pull 
out his sword ; at which time the pannel 
coming up with Bridgeton, made a push at 
him ; in which instant the Earl turning hastily 
about, pushed off Bridgeton, and threw him- 
aelf in tne way of the sword, by which he re- 
ceived the fatal wound." 

These are the unlucky drcnmstances of the 
fact, as the lalvyers for the pannel have been 
instructed to plead : and from it, as so stated, 
the defence iunsted upon for the pannel was, 
that the act of killing is not murder, nor capi- 
tal, where there is no malice nor forethought 
•gainst the person killed, either prored to have 
been conceived and retained at any time pre- 
ceding the act of killing, or presumed from the 
circumstances to have preceded the act imme- 
diately before the committing of it : but that 
in this case there is no antecedent malice spe- 
cified or lybelled ; and therefore it must be 
taken for granted, that there was none. And 
as to presumed malice immediately preceding 
the act, that the circumstances entirely exclude 
that presumption ; first, because, as the fact is 
laid, any blow or push that was intended, was 
made at, and designed for Bridgeton, and not 
against the earl of Strathmore ; and since the 
imtium/acti is to be considered, as well as the 
•rent, a push begun and intended against 
BridfUBPi «ould otrar be tha fouBdatioa of a 



Trial qfj^mes Camegle^ 

^ presumption of malice against the lord St 
more, the person killed without wbicb 
killing could not be capital, but in tfaia 
was merely casual and accidental, it hi 
bapnened by the Earl's imluddly tumilig 
in the time of the pannel's very act of poa 
against Bridgeton, wherd>y the Earl rec 
the fatal wound. 3do, That the pannel 
never be more criminal in having kiUed tfa 
of Strathmore by a thrust directed at Brid| 
than he would have been if be had killed Bi 
ton himself; but that so it was, that if Im 
killed Bridgeton, after the provocation m 
manner above set forth, that it wouul 
been construed ouly as casual or culpaU 
midde, without forethought, because don 

* incontinent!, et ex aubito impetu, et i 

* justse iracnndise ;' yea, in some mea« 
self-deleucc;, since the pannel having 
thrown into the kennel, even to the dasai 
being suffocated, he had reason after tl 
expect the wont from Bridgeton, since ofl 
tieman will throw another into a puddle, vt 
not supposed to be ready to go further, i 
cannot but expect the strongest retortion c 
injury ; and that the pannel bad the more 
son to think so, that Bridgeton immediately 
took himself to the earl of Strath mere's ai 
and endeavoured to pull it out, having M 
his own, by reason that the known ferodi 
his character and behaviour is such, that 
country-gentlemen of bis acquaintance del 
to keep company with him, if he wear 
arms : in such case the pannel was to a 
the worst, and so was in some measure ii 
own defence, although he may have exoa 
the * moderaroen inculpatoe tutels ;' wl 
excess, in such circumstances, would no 
punishable by death, but only by an arbiO 
puniahmeiil. 

And in support of this dcfeure the con 
for the pannel shall now, in this informal 
endeavour, though somewhat out of the c 
of their pleading, to follow the inforoii 
given in for the pursuers. And first, to i 
your lordshifis, that killing in such circ 
stances was not capital by the divine Ian 
law of Moses. 2do, That it was not capita 
the common law, which we in great mei 
follow in matters of that kind. Stio, Th 
was not capital by our own ancient law. 
That our ancient law in that particular is 
altered by the statute of Charles 2. 5to, ' 
the practice of the Court is not inconsitf 
but agreeable to what is here pled. And 
That the laws of our neiglibouritig nations 
for tlie most part consonant to tliose princij 
as well as the judgment of ibreip^u courts. 

And to begin with the divine law, it ma 
divide<l into two: First, the law of nal 
which is the first of all laws, and hath no € 
author than God Almighty himself. Sdo, 
will revealed by writing, particujariy in 
Uws delivered by Aloses. 

And as to the law of nature, one of the 
principles seems to be, that every action i 
be constroed and regulated from tbo iotii 



fofr the Murder of the Earl of Strathmore. A. D. 1728. 



[98 



. Everjr action whatever, except io 
is coDJo'iDed with the will and inten- 

• a^ent, cliflTeri in nothio^f from the 
irrational cremtnre ; yea, if we may 
s to call the o|ienition nr impulie of 
te creature an action, the actions of 
led from his intention and design as 
sntnre differ in nothing from the 
ftrntes, or the impalse of things iu- 
aod consequently that action, be 
I, cm neither be crime nor virtue; 

* impulse or motion, not properly 
laws or rules. But then, indeed, 
im to be conjoined with tlie inten- 
Mk is the same thini^, considered as 
rf" a rational a^ent, there it comes to 
to bus, to be considered as criminal 
i : or if it appear to be accidental, so 
depended upon no will nor delibera- 
isoo, then it returns to be of the na- 
ict of an irratioOal crcatur6,or inani- 
iDce, and is subjected to no penalty, 
pable of receiving^ a reward. The 
)aence of which is, that it is the 
De that determines the nature of the 
'the animuM or intention was crimi- 
ij the law of nature, the action itself 
a crime. On the other hand, if ii 
i f irtnous, the act is laudable by the 
tore, supposing even a bad consc- 
old follow. But, in the third place, 

truly arise from no intention or 
(oreming that action, it is neither 
K punishable, it returns to be of the 
Ij mentioned, the same with the like 
srational creature, or the impulse of 
ite substance, moved by a cause in- 
itself. And the consequence of all 
a by the primary law of nature, the 
Mat make the crime ; and therefore 
fear no intention to commit that par- 
X which happens to be complained 
t a crime, uot withstanding of a bad 
ee ; it is considered as a tatalit}-. 
'application is plain to the present 

tiiat if the unfortunate act of killing 
td lord did not fluw from any intention 
Kted ; then that net is not bv the law 
a cr.minal act, however the antece- 
directed airaioat another may he cri- 
t is another question, hoiv far a ra- 
nt, vcrsans t>< illicito, is bound for 
ces that did not lall umler liis iiiten- 
'. shall afcer^vards endeavour to shew, 

1 neither a question iu the law of na- 
D the divine law ; but is a question 
m the municipal laws of particular 
, or at farthest from the law of na> 
letimes called the secondary law of 

point, that the intention directed to- 
act committed, must govern the ac- 
to render it criminal or not, accord - 
first principles of the law of nature, 
be pretty plain, if we retire our 
torn other aher laws ; so indeed it is 
and illustrated by the written law of 
iVIL / 



God, as delirered by Moses, with rmrd parti- 
cularly to the question of manslaughter. It is 
almost unnecessary to o)»serve, that whether 
the remedy against the penal consequences of 
actious, committed without intention, was in 
form of an absolvitor upon the trial, or by bar- 
ing access to a city of refuge ; it is the same 
thing : the question is, what was to he the pu- 
nishment that was to take eflfectP If the pu- 
nishment was to be stopped in that form, by fly- 
ing into a city of refuge, the principle of law is 
the same,as if the effect had been to be stopped in 
any other way. And just so, as we will after- 
wards have occasion to notice, it is the same 
thing as to our law, whether the manslnyer was 
to be safe, by flying into gyrth or sanctuary, 
according to the old law, or now to be safe by a 
judicial absolvitor or restriction of the punish- 
ment. And just so with regard to the law of 
neighbouring nations ; it is all one, whether a 
man is to be freed by beneflt of clergy, or such 
other form, if he is to be free. The foundation 
question is only, what was the panishmenr that 
necessarily, cum effectu^ falls to be inflicted 
upon a homicide orsnch and such a kind ; and 
as in this case, upon a homicide dommitted 
without tbrethoufifht Or malicious intention di- 
rected agamst tiie person that hath suffered ? 
And therefore if, by the Mosaic law, one in the 
pannel's circumstances was to have the benefit 
of a city of refuge, the argument concludes, 
that by that law he would not have been sub- 
jected to the pain of death. Indeed we believa 
we will be able to go a little farther to shew 
your lordships, that, according to the opinion 
of the most learned interpreters and doctors of 
the Jewish law, the l)enentof the city of refuge 
was scarce necessary in such a case as that 
which is now bel'ore you. 

In the 19th chap, of Deut. the cities of re- 
fu{ve are appoint^^d to be separated io the midst 
of the land, that every slayer may fly thither : 
" And this is the case,"(«ays thetext) " of the 
f«1ayer, which siiall fly thither, that he may 
live: whoso killeth his neighbour i^norantly, 
whom he hated not iu time past;" or, as it is 
said to be more literally in the original, '* from 
yesterday the third day." By this text your 
lordships see those two are conjoined as expli* 
catory of one another, *' ignorantly whom he 
haten not in time past;" and so the word *' ig- 
norantly" is put in opposition to " hatied iu 
time past," and by that means the sense is 

tilain,that by ** ignonintly" is not|nieant, without 
Knowing that he kills his neighbour, but with- 
out a fure- knowledge, a foresight, a former ra- 
tiocination and design : in which sense, know- 
ledge is most frefjuently taken, because it is 
imiKtssible to maintain, that if a mau i^norant- 
ly kill his ueighbour, even whom he hated be- 
fore, taking the word " is»iorantl\\" in that 
sense, of his not knowing that he kills him, or 
killing him by mere accidviu, without his 
knowledge, can he liable as a luurdcier; be- 
cause it is impossible to conjoin e\c» preuous 
enmity wiUi accidental iguoraiu killing, «<> ■" 
to make out a crinie ol luuv^^v •, \W\ >^*:^<i *^' 
11 



99] 



2 GEORGE II. 



cccdiotf inconsistent with every |>rinci|jle of 
reason, tur more uith a law fluiviiig^ from infi- 
nite perfection. But then the matter is fully 
explained hy ?er. 11, of that same chapter, 
which determines when a man is not to have 
the benefit of the city of refii^ ; " But if any 
man bate his nei{;hhour,and he in wait for him, 
and rise up against him, and smite him mortal- 
ly that he die, and flieth into one of these cities: 
then the elders of his city shall send and fetch 
him thence, and deliver him into the hand of 
the avenger of blood, that be may die." Here 
are both sides of the question put, the one fully 
to explain the other ; the last to explain what 
is meant by <* i(;norantly, whom he hated not 
in time past.*' The last text does bv no means 
•ay, that if a man smites his neighbour whom 
he knowcth, ahhough without hatred, and 
without lying in wait, and without rising up 
against him, that he shall surely die ; but ou 
the contrary, puts the issue of his dying upon 
his liating uf hhn whom he killed, and u|x>n 
his rising up against him whom he did kill ; 
and u(K>n his lying in wait, that is, in other 
words, n|>bn bis designing to take his opnortu - 
nity from a premeditated malice: for indeed 
the meaning cannot be that of a formal lying in 
wait, or lurking in a pussage where the person 
was to pass ; but he who debi^ns the thing, 
and takes bis opportunity, lies in wait in the 
plain sense of the text Besides, the word * * ig • 
Donntly" ?ery plainly imports, and carries 
under it that case of a man's killing, by mis- 
adventure, one whom he did not intend to kill, 
that is plainly ignorance ai to him who was 
killed ; and yet it will be true, that if he de- 
signedly kill one in place of another, mistaking 
the [>ers<)n, but designing to kill that person, as 
aup|K>sed to be the other, he does not ignorant - 
ly kill the man whom be does slay, he kills 
him knowingly, although he mistake the 
man. 

Nor is it of any importance, that the exam- 
ples immediately subjoined in the 5\\i verse, 
are instances of slaughter entirely accidental ; 
and where the slayer did really not know that 
he killed, that is an example, but not an ex- 
ample exhausting the rule, which the lltli 
verse fully clears, as not extending the capital 
punishment to all who caiQe not under the de- 
acription in the 5th verse, but to those alone 
who ^* bated their neighbour, lay in wait for 
him, and rose up against hiiii." 

And though this is plain vnough from that 
part of the law, yrt the matter is indeed more 
fully exjdained in xxxvtli chap, of Numb, 
where there is another ordinance as to cities 
of refuge, and thev are appointed to be six ; 
and the general mlc is set down. That every 
one that kills any person unawares, may fly to 
thote cities. Nothing can be plainer than 
the meaning of killing unawares, tnat is, with- 
out deliberation, unexpectedly, without fore- 
tboaght, ex improvito, es inconsuitu: these 
are bW aynonymous, and accordingly the 
Septnigict translntioD to renders tbo words 
n9fm,UiA iS| ** hivoiumarily ;*' and lo like- 



Trial of James Carnegie^ 

wise the Jewish doctors have expl 
will afterwards be noticed. 

Ader this the text goes on with 

meiit or amplification of that y 

" And if he smite him witli an 

of iron (so that he die) he is i 

&c. And if he smite him with 

stone (wherewith he may die) ; 

he is a murderer, 5cc. Or if he 

with an hand- weapon of wood 

he may die) and he die, he is a 

These are the amplifications ; bi 

lows the limitation in the 20th ve 

if he thrust him of hatred, or I: 

by lying of wait, that he die ; < 

smite him with his hand, that he < 

smote him shall surely be put to dc 

is a murderer," &c. Here is th< 

he that killeth or thrusteth wi( 

weapon, is a inunlerer, under th 

introduced by the particle ' but,' as 

tory exception to the generality 

but if he thrust him w ilh hatred ; 

other wonls, that he is a murderer 

him in hatred : and therefore cc 

refer from this text to the other 

nomy, already cited, for explicat 

where it is stalutcd. That if a ni 

neighliour, and rise up against hiii 

him ; whereby they plainly uudersi 

ing him of hatred, as the same w 

against him, and smiting him witi 

as to comprehend every maune 

witli any weapon ; and conse<|ui. n 

is not a distinct manner of killiii'^ 

is expressed in the IGth verse, b 

adjected to the manner of killing, s 

it capititl, viz. That it must he doi 

And this is yet more elearly ex pi: 

32nd and fblloivin<>[ verses, y^ here 

tion is Ntated lietuixt thrusting s 

of enmity, with a direct rcferi'iieii 

17th, and 18th vei-scs, *' But if h< 

suddc'niy without enmity, or ha% 

him any thing, without laying 

with any stone whercwiih a man uk 

him not, and cast it upon hint tha 

was not his enemy, neither soii<;l' 

then the coiigrc;4ation shall jmi;. 

shall deliver the slayer out (d the 

avenger of blood. *' There ril 

methods of killing before-inentit 

ferred to : thrusting, properly apf) 

killing with a sword, but \viih< 

casting any thing upon him, uitl! 

wait, or forethought, or with any « 

with a man may die, the very ihii 

inlhe 17th verse, and from which 

to be a murderer ; yet, it he 

enemy, neither sought his harm, 

munlerer, he is not to die, but lu 

from the avenger of blood. 2So tin 

last vcri«8 are a plain limitatioi 

went before ; the instrument, w ha 

was to raise a presumption, it a 

but yet if itapiiear the pervon %va 

or hurled at, or smitten in euui 



I] fir the Mwrier fjfihe Earl of Siraihmore. A. D. 1 72& 



[102 



'ffv to be ddifcred ffrom the aTengrr of 

ctn it stnmble jour lordihipt, tlitt 
Hid ferse are thew words, '* teeing 
iwtC ** if this were one of the renuisites 
ftr the ilayer^t safety* that he did 
taan whom he thm8tat,or killed 
iMtttthiragh not done in enmity: for, 
til impOBnble tn imagine, that the 
'nag him not," however they miq^ht 
iccMe of throwing a stone, can hare 
10 the words, ** thrusting with- 
How can a man thrust at him 
Mfth not? Or, How can he smite 
I he seeth not, in any proper sense of 
f Aad therefore it is plain, that as to 
'^* ' the only limitation b, that it be 
Mtat enmity. But, Sdo, your lord- 
tiB obaerre, that tlie word *• him** in 
" seeing him not," is not at all 
; itisau ailjeclion of the trans- 
, as such, is distinguished in different 
in any correct editions of onr bibles, 
I is an erroneous adjection : the 
inrid be only •* seeing not ;" and per- 
il translations ou^rht not at all to be by 
-:-■-•, c« aecinjj," but, according to the 
Latin language, by an adjectire, 
M, impmidui imprudent^ or the like \ 
iBBiiduig to oor langua^, by a substan • 
■lidvcre, such as, * without foresight :' 
^isBeptnagint does translate it in these 
■mlm, which, in our language, is di- 
'viibool foresight,* that is, without 
iisD or anterior design to give the 
Aad so the sense comes out, that 
tthroft or blow of that kind is given, 
' lity, foresight and premeditation, 
words, $ine dolo^ that there death 
^ y> fellow, but the slayer to have the 
.■••''ibe city of refuge. And that the 
■nent lawyers, and Jeuish doctors 
. have understood the scofke of the 
it liv to be such, is the next point we 
'ttdettonr to shew your lordships. 
'Mio ibe first place, we heg leave to refer 
"Wi ncifnt treatise, called Mosaicarum et 
■^htrum Leirum Collatio, last published 
W^ letnied Schulten, with his own notes 
m\i\ in tbe first Tit. of which, De homi- 
■■Jewu, V. voluntate, § 5, are those words, 
f||M dr casualibns homicid'iis Moises Isga- | 
KfciuSiautem non per inimicttias immi- 
^ItBper earn aliquod vas non insidians, vel 
JJ*i qoo moriatur, non per dolum** (your 
*^pi will please mark those last words) 
"ftftcMcrit Miper eum, et mortuus fuerit, si 
^ inimicus ejtis, &c. liberabitis percus- 
^•** Here is directly set down, by way 
'pnpbrsse, the sense of the 93rd verse of 
r'^ib chap, of Numb, before cited ; and 
Riy of these words, * seein||^ not,' the 
n^nie of thb ancient collator is expressed 
V*ewocds, < noo ner dolom ;' which shews 
JfiMefHanding ne bad of tbe words, di- 
2%coBgnioo8 to what we have above set 
m% ■ppnhciidi to be the Sep- 

/ 



tuagint translation ; and this paraphrase the 
annotator approves of as the just meaning of 
the text. 

But we beg leave to give your lordships ano- 
ther great authority, who founds his opinion 
up«in the notions of the Jewish doctors, or rather 
sets forth what they all a;;rpe<l on to be the 
import of the Mosaic law on this head, and 
that is the ^ve^i and learned Selilen, in his 
treatise, De jure naturali et gentium, jnxta 
disciplinam Hebneorum, lib. 4, cap. 9. The 
title of which is, '* De homicidio involuntHrio, 
sen quod casu factum aut errore." Theie the 
learned author takes notice of all the texts upon 
this subject, and of the Jewish doctors \iho 
hail wrote upon it, whose names we need not 
trouble your lordships to refieat, but retVr to 
tlie quotations Selclen makes. That learned 
author takes notice of three sorts of homicide, 
which he and the Jewish doctors reckoned to 
be involuntary, acording to ihe Mosaic law, 
and not to be punished with death : the first 
is, What is merely accidental. Tlie second 
is. Where the killing was not merely acci* 
dental, but as he expresses it, " prope acce- 
dens ad violentiam." The third we beg leave 
to set down in his own words, as commg up 
directly to our case: '* Tertia aqtem homicidii 
involuntarii species est, ubi qui alium occidil 
ex errore quioem aut ignorantift, quae tanieo 
prope accedit ad id quod spontaneum est sea 
voluntrium ; veluti uoi quis alterum occidero 
volens, alterum jactu aliterve perimit, aut ubi 
jactu sive saxi sive teli in hominiim cietum, 
ciijus nee ignarus qui jecerit quis occisos: 
adeoque intervenerii culpa latissima. £x tribua 
hisce homicidii involuntarii s|)eciebus, nulla eat 
que morte ex sentent ft tbreusi ordinarily, sive 
in Ebneo aliove circumciso, sive in proselyto 
domicilii, aut gentili alio puniretur. Nam in 
nniversum pronunciant, homiuidium nullumi 
seu qui non sponte seel us patraret, sic foro 
puniendum." Yea, he goes farther, that, in 
this last case, according to the Jewish doctors 
opinion, there was no need of going to the 
cit^ of refuge, for that the avenger of blood 
had not a power in that case to kill. 

We apprehend, nothing can be more direct 
or strong to the present case, than that autho« 
rity which is laid down, as the universal opi- 
nion of the Jewish doctors, which we hope does 
deserve some regard in the interpretation of tbe 
Mosaic law. 

And this naturally leads us farther to observe 
to your lordships what we insinuated before^ 
that the question started by Roman and mo- 
dem lawyers, how tar a person that intends to 
kill one man, is liable to the pain of death if 
he kill another, hath no foundation in the 
Mosaic law, either from the texts, or the opi- 
nion of those Jewish doctors. As to the last, 
your lordships see, that Seldeu from them, 
directly states the case, ** ubi quis alterum 
occidere volens, altorum jactu aliterve peri- 
mit;" and he and thej^ determinoil that to 
be an involuntary homicide, not punishable 
with death; and \s^ »ppreti%Y^^ Vbal \^ tkk\a 

\ 



103] 



8 GEORGE U. 



Triat of James Cant^ie, 



[ 



tbey are firanded in the words of all the 
texts, ** If any man hate his neighbonr, and 
}ye in wait for him, and rise np afifainst 
him, and smite him mortally, that he die :" 
Not one word here of rising up against one 
and killing another ; not a word of hating one, 
and in consequence of tliat hatred killinff 
another : that was a case which did not fall 
under that law. The hatred and the rising 
up, W88, by that Isw, to be against the man 
who was killed ; if another by fatality happen 
to be killed, that was a different case, it was 
an inToIuntary homicide ; the crime there was 
not the killing, but stood upon the rising up 
against him who was not killed ; and so the 
punishment was for invasion, but not for kill* 
log. The texts in the book of Numbers are 
all to the same purpose : « If he smite him 
who is killed of hatred, or hurl at him by 
laying of wait that he die, or in enmity smite 
with his hand that he die," &c. where all the 
rules are still directed towards the person 
alone that is killed ; and that of killing another, 
when the stroke was not designed at him, is 
ijjuite left out of the case. And the applica- 
tion of this reasoning to the present unhappy 
accident, is too evident to need enlargement. If 
it appear that the push was aimed at Bridgeton, 
that the enmity was againat him, and not against 
the deceased lord ; then, whatever bo the con- 
stitution of the Roman, or more modern laws, 
the present case is quite out of the description 
of tne Mosaic law concerning this article of 
manslaughter. 

What hath been already said at so great 
length, does fully obviate what is offered in 
the pursuers' information in way of answer. It 
is true, that the general rule in the divine 
law is, <* That whoso sheddeth man's blood, 
by man shall his blood be shed ;** and so, by 
the sixth Commandment, the prohibition is 
general, <« Thou shalt not kill :'* yet even the 
Commandment itself ad mite of exceptions ; 
such as, killing in self-defence, and killing in 
execution of justice, and killing in prosecution 
of just war, and the like. The other rule like- 
wise admits of exceptions, not so as entirely to 
t'ustity the killing, and to make the act lawful, 
>ut yet so as to excuse from the |»ain of death. 
The texts already noticed are express, that a 
man's blood may be sheil, and yet the blcxNl 
of the shedder not be required en that account. 
The question is, Whether this misfortunate 
panners case comes not under the exceptions ? 
And that we have already discussed. 

The positiou, that by the law of Afnses, 
M Death of asuddenty was plainly ca)Mtal, and 
that the slayer had the bcoeiit of ibecity of re- 
fuge, only where the slaughter was by mere 
roi»fortune," is assumed wituoutsuHicieutfouu- 
dation. It is plain, that he who thruMts without 
enuiitv, does not kill the man by mere casual- 
ty : the act I'rom which death tbllowa, is a vo- 
luotanr act, although without euiuity : andal^ 
ihougfa the killing is involuntary, and so can 
never be said to So merely casual in the sense 
4ho pmuan would laktt the wordf; neUherva 



the words in Exodus, *' If a man lie n 
wait, but God deliver him into his hand," i 
least contrary to what bath been advsn 
for it is roost properly said, that where tb 
is without the de^i^Q of the killer, withou 
mity, and without hatred ; that there, in i 
as concerns the killing, God hath delivcre 
man into the hand of the slayer. The 
meaning is, that where a man is killcc 
with design, but that the thing happens b 
over- ruling hand of Providence, pcroM 
things of that kind, in his sovereign wii 
and from hia supreme power ; that ther 
person is delivered to death by the over-c 
hand of God. And where could ever th 
more properly applied, than on the presen 
lancholy occasion, when the providential 
ing about of the unfortunate, dcceaseil loi« 
casioned his receivuig the fatal wound ? 

It is likewise a position assumed w 
reasim, *' That wherever a man was kill 
a mortal weapon, that was murder by the 
saic law." vfe hope we have already da 
strated the contrary. If enmity and foretia 
was required, (and we need only repea. 
one teso, which expresses the kilHng ■ 
with a stone, wherewith be may die) the' 
text declares the stone to be a mortal we^ 
yet for all that, in case of the circums 
mentioned in the other verse, the slayer vb 
to die, but to be delivered from the aven 
blood : and this single consideration m i 
sufficient to refute such a position. I» 
possible for a man to use a mortal w • 
where there is no enmity, nor design to k 
person who is slain? If it be possible, as 
tainly is, tlien can we imagine thatal^ 
perfect as the divine law itself, could dp 
man guilty of murder, because of the ' 
such a weapon, where he really intend 
more barm, than a man that used a wea] 
another kind? Besides, that in truth 
weapon is a mortal weapon with which s 
may be killed : and therelbre« to iniagio 
the divine law laid such a difference b 
an instrument of iron, and one of another 
is certainly to go too far. The law of Gc 
put the matter upon a much juster tbi»ti 
wit, the intention of the person, which 
can distinguish his actions. 

The pui-suers also say, "That thoo( 
argument is grod, that wherever the beut 
the city of refuge %vas not competent, the 
crime was capital ; yet it does not fulloH 
where the power of the laws were susp 
by the jut a»yli^ that the punishment is 
be capital iu a country where the jiuofy/i 
DO place." 

but. with submission, this is no solid v 
arguing : the question hitherto treated is, 
was tlie Uw of Moses, with regard to pi 
inents in the case of manslaughter ? If tl 
Disbmeni in any case was not ca)Ntal« be 
of the privilege of the asylum, tlie cone 
isjiist, that the all- wise G<nI did not inteiM 
puniskmenta should be mflictcd for such 
taaoe^ aiid tht fiwm of granting the pnH 



MS] Jor the Murikr of ike Hart of Strathmore. A. D. 1726. 



im 



irike BUKhant, does not alter Ihe subsUnce 

fht MSt poiii lodertakeo to be illastrated, 

m, TWt MBclauglUer, under sucb circum- 

gtaMHW occur in tbe present case, was not, 

Iviha SMUBOo law, pnaisbahle by death : and 

M isfBMBi ami indeed be divided into se- 

•iieh as, Imou Tbat culpable 

sw not so ponishable, and tliat bo- 

■aittsil opoo sucb high provocation, 

WPfcRfifeQ by Bridgeton, coiiM amount 

^flUli hooMtdt only. Sdo. That, by that 

ki^aidnucd lord not having beeu intended 

UltkiiilMttbe invasion, whatever it was, 

lajiiBit another; Uie killing the earl 

*,ortl worst culpable, not puniahable 



r: 



iiitftB the first of these points, we shall 

" Jior lordships with infinity of laws 

■of lawyers that might be adduced 

Ae poiot, but ooly take notice of some of 

iMl raairkible, and which seem most ap- 

*' II tbe present case. And in the first 

faoodationof the Roman law on this 

to have heen laid down as early 

Aidijief N'uina ; tor the Roman writers 

■iiiiieeof a Itwof his in these wordu ; *« Jn 

felvbul ciiitum est, ut si quis imprudens 
■ lecidittet, pro capite occisi et natus 
RiieBMiooeofferret arietem.'' This law 
bisMieeof by Pithaeus, in his annota- 
W^tliefore-citeil, ancient treatise, cfim- 
pHf ibe Monir and Roman Uw, with refl^ard 
MiMofinaiiUaugbter, w agreeing pre- 
M^ai tfcthelaw of Aloses; and tho plain 
■■■■Ci^it is, that where a man kills ano- 
■>,ilihosgfa cul|iahl^, yet if if ho sine doh 
f^yn^tiam, hi is not to Riiflcr death, but 
*■■*•*«> thracnl til the n»»arest rehitions 
"•fViOii killi-d: and the same treati»e 
'■■'•Beof a rescri pt of Adrian's to the same 
^^•.directed to TauriniKs I'^iintius, approv- 
^'^ 'Moment given in ihc cawe of one Ma- 
•^nMUf, whereby the prucunsul had nii- 
^P'Bdi^lMjnishment of manslantrhter upon 
•tpMJwJ, thai suppose it was done per las- 
«*«i wd culpably, yet il ivas sine doio. The 
■*die* Ihe rescript are, ** Pcenatn Marii Kva- 
nbrccie, l^atc Taurine moileratus es ad mo- 
^Mi rni[n; ; relert cnim, et in majoribus de- 
w cuosuiio alio quod admiltatur an casu ; et 
■xisooioihuM criminibus distinctio hcec pcc- 
■uiiMjiistitiam provo<:aredel>etaut tempera- 
■wtom adniittere." And ^»chuIten, in his an- 
•Wmss, explains what is meant by casu in 
■»« aords, ♦* Per casum hie intellis^itnr fieri 
^ iioo fit dolo, quomodo et quod impetu fit, 
•^ Jicittir fieri," I. 1, sect, a, ad leg. Cornel. 



Lbi pro causa, editiones veteres 
^fbttsm recte haberi casu certi»imum est.'* 
•fcefc, by the bye, shows how erroneous the 
^|ars' isterpretatioo of the words casus and 
Ijssi • M, » hen they w«Mild reslrict them to 
^ ii done by mere acciilent. 
' 1W ReacTid rules or the civil law arc plain 
2|^ paint, tlMt it is the ** animus qui male- 
wildiHiBguU ;" %kMi tlMre can be uu wuiiler, 



^* aine aniiso occidendi." But tibeao gononl 
topics need not be insisted on, whore the texto 
tbiemaelvea are so express, auoh as not ooly 
these already mentioned, but even tJJMt 1.1, sect. 
S, ad leg. Corn, de Siccar. " Divus AdriMUif 
rescripsit, eum qui honiinem oocidit, ai noo oc* 
cidendi animo hoc admiait, absolvi poAU».'' And 
a little after, ** £t e|t re coostitueadum boc^ 
nam si gladium strixerit, et in eo percttsserit^ 
indubitate occidendi animo id eum aduiiaisso.** 
But then he adds the exoeptiou, " &:d si olavi 
percuasit. aut cuccum^ in rixi : quamvis terra 
percusserit, tamen non occidendi animo, lenieii« 
dam poanam ejiia qui in rixa caau magis quana 
voluntate homicidium admisit." It is truo that 
the pursuers, and indeed several of the doctors, 
endeavour to turn this text the other way, hy a 
plainly erroneous interpretation, and wrong 
pointing of the text. They pretend, ** Thai 
where a wound is given by a sword, there th« 
awmus is undoubtedly presumed ;" and ao far 
right as to the rule. But then the law aeta 
down the exceptions ; first, if the stroke bo 
** clavi aut cuccuuift/* suppose these be mortal 
weapons wherewith a man may die, yet be* 
cause they are not instruments exiiressiy mada 
for death, the presumption is, that **aberat 
animus occidendi." uoleMs i-ireumstancesmaka 
it appear otherwise Then the seconil excep* 
tion is **in rixa, qnamvis term percusserit,'^ 
although a mHu strike witli a swoni, yet if it ba 
in rixa. suddenly, or ujion a provooaiiou giveD, 
*' tanien non occidt-ndi animo, leniendam pca- 
nam " because ^' in rixa, casu magis quam 
volnntate homicidium admisit." Thoiie doo« 
tors, inrleed, who go wrong in the interpreta- 
tion of tliis text, pretend, that the meaning of 
quumris fcrro is not, although he strikb with a 
awiini. lint would make the meaning to be, 
*' Although he strurk witli an instrument of 
iron," and so make the word J'errum^ and also 
those words im rijrci, refer to other words "• clave 
aut curcuma ;'* so as that the sense should be, 
if a man strike, " clave aut cuccunia in rixa," 
althoutrh these be instruments of iron, he is not 
presumed to ha\e had the animus occidendi. 
But, with submission, as t)oih the learned 
Noodt and Sciuiltun observe upon that law, the 
interpretation is strained, and imleed illiterate : 
for the word /rrruw is never used in law in that 
sense, but always does sii^nify » sword, and so 
the expres^un is the same, hut ornately repeat* 
ed in other words, as if the emperor liad said, 
** in rixa quainvis gladio percuatserit :" and so 
the sense is, that the animus is in (general pre- 
sumed from the using a sword, that it is not 
presumed where the instrument is not an in- 
strument made for death ; hut if the killing 
happen in rixa, the animus is not presumed, al- 
though the stroke be given with a sword. 

And this is likewise the opinion of the learn- 
ed tirotius, in hiii annotations upon the text, in 
Numbers aiiove cited, verse 16, which, in the 
l^tin translation, is rendered ** Hi quis ferro 
pcrcussriit ;" on which Grotiiis hath Uiisnote, 
'^ Mos Khraiorum luultis verbis rem circumlo- 
qui. iStiiikUb e^ ; mortis esse poiuam quali- 



1 



107] 



fi GEOHGB IL 



cooqae ti\o <|uia homiDem ocdderit. Ex telo 
pnnuinitur malam cofwilium, nisi oontrariiifn 
appareat.*' Tbero your lordtbips see that au- 
thor's epinion is as-we plead, thiat the using a 
mortml weapon presumes the design, hut not 
'* preesumptione juris et de jure ;" for he adds, 
** mm contrariuin appareat." 

The rescript of the emperor Antonine b like- 
wise as express on this head as can be, 1. 1, 
Cod. de Siccar. " Frater vester rectius fecerit, 
si se prcesidi prorincisB obtolerit. Qui si probt- 
terit, non occidendi animo hominem a se per- 
cussum esse, remissIL homicidii pcaiill, secun- 
dum disciplinam militarem senientiam profe* 
rit; crimen enim oontrahitur, si et voluntas 
oocendi intercedat, csterum ea qnie ex impro- 
vise casu potius qnam fraude accidunt, fato 
plerumque non noxos imputantur." Here the 
emperor plainly sets down these two things, 
first, Ths!t " pcsna homicidii est remittenda, si 
animum occidendi non habuerit/' 2do, That 
where the thing is done ex imprcrvt90j there is 
no animui ; that it is to be looked upon as clone 
colli, by fatidity , rather than crime : but never* 
theless that in such a case there may be an ar- 
bitrary nunishment. 

The doctors of the Roman law seem to be 
unanimous on this general point. Carpzovius, 
one of the severest criminalists, is most express 
upon it ; *' Ceasat porro pcena ordinaria bomi- 
culii, si culpa vol casu fuisset commissum ho- 
roiddium ;'* and goes on, '^ quod adeo verum 
Ml, ut m homicidio lata culpa, dolo non sequi- 
fwretur." Clams is likewise as express upon 
this general head ; and such shoals of others 
are by them quoted and referred to, that it were 
vain to repeat their names, or trouble your lord- 
ships with quoting their words. We don't 
know that any lawyer of reputation differs upon 
the general point 

But then indeed the question comes, What 
is culpable homicide? And whether the pre- 
sent case fiills under that description ? Which 
is next to be illustrated. And here we humbly 
insist, that where the homicide is committed 
upon a sudden quarrel, and provocation given, 
cspeciallv by real injury, and that quarrel be- 
gun not bv the killer; that this is no more than 
culpable homicide: and for this, in the first 
place, we oppone the law already cited, ** in 
rtxa quamvis ferro perctisserit." And to the 
same porpose is the first law, § 5. ff. ad senat. 
consult. Turpilianum, the I. S. Cod. de abolit. 
and the § 9, 1. iG, de pcenis ; the words of 
which we shall not trouble your lordships with 
rtpeating, because they are the common texts 
founded upon by doctors on this head. We 
have likewise lor us the authority of all the 
ancient, moral philosophers ; such as Aristotle, 
Plato, Plutarch, and many others, likewise com- 
Monly taken notice of by the lawyers on this 
aabject. It is true, some of the severest cri- 
ninalists, such as Matthssiis and Carpsovios, 
Am't admit the role in general, but still they 
admit aa mach as is necawary in the prewnt 
qucttinn: tbey doo't allow, that where the 
killcc ii muiv rixm^ tliat he it at all to be a- 



Trial qf James Cart^lef 

cased, although the killing happ 
iracundia ; but then most of tlicm 
if the killer be not the auctor rixa 
person provoked, to whom a just 
has been giv.en, especially by a 
and so particularly Carpzovius, on 
verest, after he has argued at Ion 
the general point, concludes in lii^ 
§§ 14 and 16. '* Nihil quoque ad 
gula adducta, quod scilicet delictu 
missum, mitins puniri soleat ; quia 
de ira ex justa causa proveniente ac 
duplex etenim ira est, alia ex justa 
venit, que si non in totum, tamen e 
cusat, ut delinquens mitius puniatu 
non provenit ex justa causs, qus i 
cnsat." Then he adds, ** Hsec dis' 
mnniter recepta est ah interpretibus 
severals. And then concludes, ** H 
causa calorem iracundioe pneceda 
quia ah alio fuerit provocatus, au 
offensus, time is qui ir& et intenso 
motus, provocantem seu offendenti 
absque dtibio a poena ordinaria libera 
vero si quis, absque justa et pml 
iratos, aliqnem occidat, dc) ^no ci 
loquimur, qui p<ene homicidii ordii 
quam est eximendus." And then t 
that the practice in the court of J 
agreeable to this. 

There is an adjudged case vei 
published in a book, called Alpho 
Neapolitanl Consultationes Decis 
learnedly resolved. It is the Decis 
shall state the case in the words of 
'* Quidam nobilis Ragusinus fuisset 
extra (sed prope) ecclesiam sanctee 
tri Gravosa, a quodam alio nobili F 
eodem pacto evaginavit puguiuncm 
tum verberantem, ac in fu<>;am jam 
et ipsum insequens, unico vulnere 
in dicta ecclesia (qnam ille intj^ret 
dictam ecclesiam egrediens sese in I 
et cum dictus verberator, ex dicto u 
vulnere intra dictam ecclesiam mor 
The case came to be tried, at leasi 
tions upon it to be resolved, by the s 
sus; where several questions occ 
those which are most applicable to 
case are two : First, '^ An hujusin* 
diiim in ecclesia perpetratum, turra 
vduntarium necne, eo quinl dictii 
secutus fuisset ilium cessantem a vt- 
ferendis, ac aic unico vulnere inflict 
set?" The second question is, * 
nobilis pnedicto modo ac de causa 
tam immunitatem ccdesiasticaiu, V( 
seculari, et ecclesiastico pccna nidi 
tendus, vel solum mitiori pcenal*" 
tion upon the first question is. That 
first view, the homicide might seen 
<* £o quod dictus nobilis, neinine i 
pellente, fugientem hominem vuln^ 
bilominus nullo pacto fore judicand 
dinm voluntarium, aut pro tali diet 
nm.^ The reasons fi>r this n 
down with great laamiDg and ju* 



W] >r the Murder of the Earl ^ atratJmore. A. D. 17S8. 



[IW 





MM hif, that h iiimpoisiUe to repent them : 

fnliTkey ire taken from the defiuiiion of vo- 

kmrf bomiodr. Stlo, From tlie texts of the 

iNOilnr, ond the opinioD of doctors. Stio, 

Fiaalbt particular, that the noblemau had 

' ' "^ ]y itruck before; ou which the 

ruble, " £z hoc ergo articulo, 

clidtur hoDiicidium hujusmodi 

et mm voluotarium, nam Quli& 

■■iiiMqMnte,evaginato pugoioDe, ipse do- 

percusaus iosecutus fuit dictum 

jam fugieotemy et hoc pro honoris 

DMinDe, ut sic se tueretur ab in- 

flnonli recepta ex verberibus :" after 

■W Mm a kwg reasoning, all in the pan- 

lAAfMn. And this case we take tbemore 

t0M d, kcaose the parsaers pretended to 

■baAliictiMi betwixt the case of a wound 

^mA§ rcrjT moment a real injury is done, 

■Uifilwgifen after the iqjurer has desisted 

talaUBi, and retinsd to some distance ; but 

jjiiap difference, except the interval be so 

1^ kcao be supposed the thought of the 

TJared iru cool. The other question is 

loolfed in favour of the arciuied, that 

a ene, not the ordinary punishment, 

ladaiaiticslor civil, ought to take place, 

■ftttif llie pana mitior^ and conlirmed by 

■7 itaf reaaons, which we cannot recite, 

" ' to. 

jtt oilier authors that might be cited 
^fP"^ ^ifl opinion, is the learned Voet, 
biaTcr^asciioo cited by the pursuers, ad. 
^tikf, eon, de Sic. n. 9, where, after he 
iWjMi wiiat is cited for them, that onekilliug 
ttikr whs has provoked him only by a verbal 
vii|hiiajiry, " vix est ut ab ordinari^ pcend 
*■*•*"»*;" he adds, that if the provo<.'a- 
ii}' ao atrocious real injury, tliat would 
to mitigate the ordinary punish* 
lei U> confirm that, cites Matlm:us, 
&c. And the reason given by these 
fur making tliis allowance, in case of 

Bfm»ocalioo, is expressed in these words by 
H^nd, ad. 1. 17, d. t. *' Quod ei sit igiios- 
■rfsmff^iiiprovocatus seulcisci vuluit, tjuiquc 
■*■ Mortm prosequitur." 
M iodeed we a|>preljend this opinion is 
■ssAnl in the first principle of nature ; for 
Vttas} JiunaQ constancy can suflersuch high 
al injur jr, without the passions being inflamed : 
d afdKia<;h killing is no doubt an excess in the 
isnitiA of • rpal iujury , yet still it is but an ex- 
■« SAil the iujury shews the thing done 
Afiut de«ii(a ; ano iherufore, becnusc of in- 
■raU«, human weakness, the punishment 
it to be mitigated. And the application to 
IprtMrDt case, as we apprehend, is obvious ; 
ii|t«i« had given the highest provocation, 
My by a track of verbal injuries and en- 
vavs lu pick a quarrel, but had committed 
taosi provokint; and real injury, to throw a 
rinaa over head and ears in a dirty puddle, 
ftf aiddle of a town, and «ight of so many 
kakcra ; do injury oould be more pmvoking. 
I la feul there was Diore in it than an in- 
fmkf : one thmt waa abU to throw thepaa- 



nel into the puddle in that manner, was like- 
wise able to have suffocated him there ; tha 
pannel had no reason to expect otlierwise, and 
therefore do wonder if he betook himsell to hia 
sword.' And the other circumstance noticed, 
that Bridgeton, immediately upon the doing the. 
thing, endeavoured to draw and make himself 
master of my lord Stratlimore's sword, ga\e the 
iiannel ground to expect the worst ; and so it may 
be doubte<l, if he was obliged to wait till Bridge* 
ton should have'an opportunity to give him the 
blow, even with a mortal weapon. And when 
this is considered, the fact goes fartlier than a 
retortion of the highest injury: the pannel 
was in some measure put upon his delence ; 
and granting that his pushing at Bridgeton 
was an excess, yet still that excess falls only to 
be punished pand extraordinaria. 

All lawyers distinguish excesses of that sort 
into three kinds, tliat of time, place, and 
weapon that is used ; and excess in point of 
time is punished even with death, where tha 
interval is great; because that interval pre- 
sumes fraud and deliberation : but here waa 
no excess of time ; the thing was doneer ia- 
continentiy when the injury was fresh and re» 
cent. There is likewise excess m point of 
place, when the injurer is allowed to retire to a 
considerable distance from the place where the 
injury is given; aud this in some measure 
coincident with the other, because it implies an 
interval of time : yet if it be not great, tha 
lawyers hold it to ble only punishable arbitra- 
rily. And then the third is the excess in tha 
use of the wea|Min, where there is no interval 
of time or place ; and that is always agreed to 
be punishable only arbitrarily, where the pro- 
vocation is high. * 

From what is said it seems plain, that if 
Bridgeton had received tlie thrust, the homi- 
cide would have been culpable only ; and so 
it remains to be considered, ii' the case conies 
out worse for the pannel, because it was uiy 
lord Sirathniore that received the wound, and 
not Bridgeton. And we apprehend it does not, 
but ou the contrary, that this gives a great 
strength to the detence: And that because, 
Inio, The push being designed at Bridgeton, 
shows that there was no malice at my lord 
Strath more, neither prcnicditated,nor presumed 
from the giving of the wound: for admitting 
it to be true, that in an ordinary case, the 
giving a wound with a mortal weapon presumes 
the dole or inalcvolous intention ; yet that can 
never be where the push is pointed at another 
than him w ho by fatality receives it. And so 
the case comes out thus, that the [lanncl in 
making one push, could not design it at two per- 
sons ; and so if he designed it at Bridgeton, it 
is impossible to say he had a design against 
my lord Strathmoie. It is plain in the nature 
of the thinfl^, that the design, though presumed 
from the giving the wound, yet in point of time 
it precedes the actual recei% ing ox the wound, 
although that preceding or precedence be but 
momentary ; and therefore if, in the very act 
of pushing, the design appears to have beea 



ILl] 2 GEORGE 11. 

agarnBt Brid|(etoii, it excludes all pretence oF > 
any animus a^inst another who received the 
i^ouud hy fatality, in the very moment that 
the design was pointed afi^inst the other. 

And here your lordships will likewise ob- 
lerve, that there can be no animus Decidendi 
presamed at all atprinst anv man, not eren 
against Bridgeton himself; because the draw- 
innf a sword, and pirshingf at a man with it, does 
nut of itself presume a design to kill the man 
pushed at, eaccept the woand, and death ac- 
tnally follow: for it is from theerent of the 
wonod, anil death following alone, that the in- 
tention is presumed. Therefore since death 
did not happen to Bridgeton, the law cannot 
presume an intention to kill him ; since the 
foundation of the presumiitio^ is removed, or 
did not happen. If the blow had missed him, 
or had not killed, but wounded him; the in- 
tention would not be presumed ; and therefbre 
it cannot here lie presumed, as the case hap- 
pened ; for there is no such presumntion in 
law, as that killing one presumes a design to 
kill another; except where it appears that the 
slayer killed one man by mistake, taking him 
to be another : as for instance, killing Cains in 
the dark, when the killer really beliefe<l him 
to be Tilius; there indeed the killing of Caius 
iH«sumes the intention of killingTitlus, although 
he was not actually slain : and thercfoi'e in that 
case the killer is indeed guilty of murder. But 
it is quite another case, where one man is 
killed, not by mistake for another, but by fata- 
lity, when the push was intended at another, 
whom the killer knew, which is the case in 
band. And therefore we do humbly insist, 
that it cannot be said there was an intention to 
kill Bridgeton, since his death did not follow. 
Neither can it be said there was an intention to 
kill the earl of Strathmore ; liecausc, though 
his death did roost unluckily happen, yet the 
tni/itcm, upon which the intention roust be 
founded, did not happen, the push being made 
at Bridgeton ; for those two must always 
concur, the push made at iUe man who dies, 
and the actual death : and wbiere it happens 
otherwise, the death is a mere fatality ; not 
Intirely innocent, because the killer was so far 
fiittlty in invading the other ; but then it is no 
more than an invasion ; it is not murder from 
malice presamed. No presumption of law can 
get the better of contrary evidence : the pre- 
sumption of law may be, that where a man is 
killed, he was intended to be killed : but if from 
the circumstances the direct contrary ap|K>ar, 
that there was no intetitinn against hi:n ; this 
is evidence which excludes the presumption ; 
and so there can be no murder in the case. 

It is indeed a case stated by the lawyers, 
what should l»e the consequence, if a person in- 
tending to kill one man, kill another ? And we 
acknowledge they are greatly divided among 
themselfes upon theqneition ; a great many of 
the sMest of thesn ure in all cases clear, that 
where one man is killed, and another was de- 
signed, it cannot be murier, because of the 
want of tn intention against him. Bartolus, 



Tfial of James Carnegie^ 



I 



Farinacins, Gomcsius, Menocliius, and r 
bers of others quoted by them, are pla 
that opinion, and give an account of se 
judgments of the courts of Mantua and Na 
and others to that purpose; and Farin: 
says, that it is tlie common opinion, " £t a1 
sentpntiu in judicando nun esse recedend 
And however other lawyers may seem to c 
yet, in the first place, the divine law, for 
thing that can be found in it, is on this 
because it pliinly speaks only of beating 
and rising up against him who hap|>ens 
ally to be killed, and mentions no suchcai 
deserving death, as this is of rising tip a( 
one man, and by fatality killing another. 
That this was the opinion of the Jewish do 
is plain from the quotation already br< 
from 8elden, where this very thing of k 
one man in place of another is made part 
third case stated of involuntary homicide 
determined not to be capital. But 3tio, ^. 
lawyers, who at first view seem to diflF 
reany not differ, when the cases are d 
guished : for what they plainly mean, is 
where a man by mistake kills Titi us, beli 
him to lie Mevius. This we admit is ca 
for reasons before given ; hut not the oti 
killing one by fatality, and not for anothe 
directing the blow at the other. 

But then your lordships will observes 
all lawyers agree in this, that wherever a 
is to suffer tor killing one, when ho intend 
kill another ; that ran only be where the 
tliou^'litand duluse intention to kill the otI 
certain, but'not where the invafiinn is ex imp 
And therefore, supposing one invade anu 
with an intention to hurt, or prtruUre, ai 
lawyers call it, hut witlumt a c«>rtain evid 
that his thorough intention was to kill ; t 
supposing the blow intended for one do 
another, the killer cannot suffer death : 
which by-the*bve shows your lonishifis, 
there is no snch presumption in law, as, 
because the push killed the earl of Strathn 
therefore the pannel intended to kill Bridge 
for if that were law, then the question i 
never occur, but would be inept, wlietl 
man intending t(» kill one, and killing an< 
with that blow, is guilty of murder, or is 
sumed to have intended to kill that oth 
whom the stroke was intended? We 
trouble your lordships only with two autho 
on this point, which are very direct to ihei 
the fi riit is that of Htrlichius, which w< 
rather notice, because he seiMns to be ag 
IIS on the general point ; after discussing w 
he hath these words, speaking of his own 
nioii, " Fallit, si quis ali(|U('iii iion oirciden 
percutere tanlum, volens, aliutn prater ii 
tioneni i>ercutiat iit moriatur." From this 
lonlslii]is see, that it is no consequence, 
because the thrust killed my lord Strathi 
therefore it should be ptesunied the pann 
tended to kill Bridgetun : if thai were 
that lawyer's poiiitiun, from whom nolKxh 
fers, must be direct nonsense. And thei 
fince there is no other eridence of a fartbi 




theMttrdero/theEarto/i 

* BrMgtIM tirati pcrcnlcrt, er- 

Btttlmlmhoriiir lunl^trarb- 

ll hk ib*th cannot |>rmiiiire it ; 

■ "(T ifae iwsition Ui« lawyer 

i[ti tny I ' 

ir Itiirt lie iulviiitnl to ito 
■'inn at rtqiluiD, 
.-wLill. 

■'■iiiatiis, oajl. 
"■ly (luCEtinnt be 
tt' lb* kilJcr VM oeeupatuc in 
■l«ny H^^irres- 
the CMC her«, 
Mliabl«>, altbongh he r.lianee 
If : bnt tliFD he goes riirtlter, 
nplinailreiaextrinlariius, reus 
"" «IB, orcapaiiis, tali tHiiien 
il, DtMCuuin iaterferissel, 
rtam tiitiatA, ijnii|urtiKO 
ipmoioslBtbalcin ncpperii 

' ' ftl : com CDitii Coii 

errurtiMifn enm 4 

debvl: atqueCainpo- 

fbnit, *el iracuoiliam 

erit, id quoil induwcii- 

Here joiir lardshi|]S 

: of a rixa, wh^re one 

n BriJfreioji iliit; he 

«ach a COM killing the 

lninf«r ileaih ; much l«u, 

killing of a third (wiiy : 

' olMerTa be ancrls fur- 



*wilt 



r, l»<i 



of theslaii^hlcr. 

omeiyet i-lowr Id iht 

latnea Caium idTersa- 

I, Kd illi tautum norare, 

impnidenlGr st ictui oliji- 

torcnl, tune certe im|iru' 

ii 4HieliUD rel agfp-aTare noi 

il ipodvralorem rixie se noo nb- 

umaiibiiort ex propiDquo 

a nedrnle forte remutior, 

re naxuni inde reporiaMPt, 

rs obiala eat : excusandiii 

,*TC(umr tunc, cum occi' 

«i«dfui*Map]>iiift." 

lie M the preirent questioDi 

h h were ■ rcMluiion on ih( 

ir lnn<«lM[i« see, that not- 

11^ killed, theauthor say« 

se an|war, ihai there « n^ 

t Mlier : the olbpr, who, 

■naancc, migbi doi ban- 

e bMn bprt anrf 

a tliat came 

vltabehilM. This 

H itHiK not ap- 

B kill UcMirelnn, 

~ n killed, Ihii he 
indeiJ ; and 



tare. A. D. 172S. [114 

bnnuse «f tlin fblalily of killing the (leceued 
loni, '■ qui "tibito rorpiM siintu ex pnipinquu 
objecil.*' An<l ii|>Qd nil tbnse groiiriiis. wb 
humbly b9ial, tbatilBriUgelOTi hail Weu killed, 
there WAuld bare been nu place tor a CHpltal pu- 
nish mctrf : bnt ibenBeparalely, whatever be id' 
that, that since it doee Dot appear (nnr cauunt^ 
rieaih ffitt not follow)ihnt there wB« a cer- 
tain intcniicn to kill bim, tho casual kilting of 
the earl ofStrathnHiv cannot bp puniabable ivilLi 
death. 

What has been saii), fully rcmoTca any ar- 

Kment that may lio drawu from air Geor^ 
ickoLisie'e opinion, " Thui lie who by dim- 
lake kills one tor aitnlUer, should die:" For 
your Wilsbipsaee, that be siieaks only of that 
cose, wlien one man ia certanily iittended to b« 
killeil, but another is killed by mistake, bein^ 
)iiipitoierl 10 be him : that ia not the case noir 
bctora v4>iir lordships. 

And til this qiieaiion, concerning thepauml's 
iDtcnlbn and iteaigii- 'lie cin^uniBtaDce of hi« 
bein^ overtaken nilh drink, is a circa inMalica 
tliHl ivninta in the arf ument. We do oot say, 
thai, heiiig drank affords a deftrnce for killing ; DO- 
verlheleaK it isa cireuinitatKC whereby tDkbow, 
there wna no malice or dole, especially agoinat 
the earl of Stmllimore; since erery boity raay 
conceive, howes&y ilin for a nraii that Is drimk, 
pDsbiBi; nt ODe, even to atagger upon aootbeTf 
or not to hare the judgtnent and presence of 
mind lo draw back, when thai otlier auddeoljp 
IhroWB himself in t|ie way of ihe tbrusl. 

Wh.it ia laid duffn by the piinuen, in op' 
(HMition to all this, in Iheir int'ormaUon, i* ao 
fully obviateil, tbat il is quite needless to repeat 
ilieirnrgument; only whereas they say, "That 
if killin'^r, notwiihilanriiii^ of provocation, bad 
not beet! capital, il ooiild not hare been a doubt 
in the common law, wtictlier a hntbaud oui;hl 
to NufTer deaib, who kitlad his wile taken io ibtt 
actofailuttery r" But we apprehend, that tha 
direct contrary conieqiienee ti)llow«. that if liigli 
prOTocatinii bad not affonled a iletence, then 
mdeed (here could nnl hari^ been a doubl ih« 
busbaml must have died, berause high proTO- 
cation wa* ail that be had to plead : but lti« 
doubt was, whether a provocaiion of that kimH 
where there was no real corporal injury lo the 
husliand bimsetf, wua aufficietit? Aud ilie Ini* 
rfetermiues that it waa; and couseqiienlly c^la- 
blishes the rule, tlial hi^h and grievous prura* 
cations ought to alleviftle ibe piioi'^binenL 

The br-ortnl, that " veranos in re ilticila te- 
nelur <le omai evenia," olTordB no argument 
agaioit ibe panncl in this oa«e ; nor indeed 
hatb il been much insiittod on by the pursuer*. 
luii>. It IS not true in many cases. Uut, ado^ 
It holde in no case, except with regnnl to con- 
seqiitnees or evenU, thai happen with rrgar4 
lo that siiltjpct or oliject, agaiart »lK«n or 
H hich Ihe unlawftil act is tlirecieil = aa for in- 
utance, if one aeisfire to u liouse, be is giidty of 
murder, Ifa tieraon h«pi>cii lo bcbiirtii id tlirt 
hnure; orifheunderiumea hwisi*, he i« linlile 
for all ihe Bloods iknt m»y he dwlroyed by it> 
Ml ; hot be ■• not liable for any uitruMi* 



1 

i 



I 



1 15J 2 GEORGE IT. 

damafi^e tliat may happen to another subject 
casually and by areideut: and ihereforei sup- 
pose it were proved, that one unlawfully inrad- 
in{? another, without a desifj^n to kill, might in 
some eases be liable, it' death followed ; yet that 
can only be with reflrard to the person he in- 
vades, but never with regard to what acciden- 
tally happens to another person. And so Carp- 
zoviiis explains the matter, an. ]. §. ult. in 
these woras : ** Supra dicta enim (quod nempe 
dauti operam rei illicits iroputari defaieat, 
quicqoiu tuerit prceter ejus intentionem ex eo 
actu secutum) procedunt tantum, quantum ad 
subjectuni, circa quod rersatur ipsa malitia il- 
Hcite operantis, et quantum ad ea quee illi ob- 
jecto per se et immediate junguntur, autneces- 
sario sequuntur ; non auten quoad illaquee per 
accidensoriuntur, a re ilia mala cui opera datar." 
ttesides, it is certain, that the brocard is no 
rule at all in the matter of manslaughter, other- 
wise there never could be such a thing as cul- 
pable homicide ; which it Is plain tliereis. 

The next thing to be considered is, what was 
and is the law of Scotland concerning this mat- 
ter P and first, as to our ancient law, the pur- 
suers seem to be the first that ever disputed, 
that according to it there was a distinction be- 
twixt slaughter and murder. Sir George 
Mackenzie is express upon it. By our law, 
says he, slaughter and murder did oVold differ, 
as " homicidium simplex et premeditatum*' in 
the civil law ; and murder only committed, as 
we call it, upon forethought felony, was oidy 
properly called murder, and punished as such ; 
for which he quotes the express statute, pari. 
3, cap. 51. K. James 1, appointing that murder 
be capitally punislie<l, but chaud melie^ or 
slaughter committed upon suddeuty, shall only 
be punibluble according to the old laws, and se- 
■ veral other acts of parliament, to which we 
beg leave to refer [See the abstract of them at 
the end ;] which expressly make the distinc- 
tion betwixt forethought felony, and slaughter 
^f suddenty : and though none of all these laws 
particularly express the punishment of inau- 
slaughter, as they could not will do, becaube 
that wa:( arbitrary according to circumstances ; 
yet, as sir George observes, the opposition and 
distinction is established betwixt slaughter by 
forethought, and chaud tutlle, hud the punish- 
ment of the one to be less than that of the other : 
and therefore, we apprehend, we may leave 
tbui point as clear and undoubted. 

The pursuer has endeavoured, to no manner 
of purpose, to set up others of our ancient laws, 
in opposition. to those obser\ id by sir George 
Mackenzie, such as the third siatatc of king 
Kobert 1, which, with submission, is nothing to 
the purpose : for, first, It does not concern ca- 
pital Climes only, but any crime touching limb, 
as well as life, iido. Though the word 
slaugliter is mentioned, without adding ^ bv 
forethought felony,' yet the same thine is ada- 
ed in other words, when it says, touching life 
or limb, to which alone the act relates, that is, 
forethought felony ; because slaughter, by 
Qhmud milUf touobad ueitlier life or limb. Tm 



Trial of James Carnegie^ 

title of the act is, ** Alen condemned t< 
should not be redeemed." But what 
to the purpose, in a question, who sht 
condemned to death, and who not? 

The 43rd chap, of the act of king Re 
is as little to the purpose ; for as it sp< 
hairships, burnings, reif, and shinghte 
very plain it means only wilful, prem 
slaughter, otherwise it would follow, tl 
only wilful fire-raising, but burning of a 
by neglect, or lata culpa^ would infer tl 
of death, which noboav ever dreamed, 
the next paragraph makes it further cle 
pointing sheriffs to take diligent inqu 
*' gif any be common destroyers of the 
try, or hath destroye<l the king's liegi 
hairsbip, slaughter," &c. Can a mai 
common destroyer by slaughter, except 
the slaughter is supposed to be by foretl 
felouy ? Jt is certain he cannot ; and tht 
the pursuer's procurators fall into a grei 
take in law, when they say, that ^if 
kenM with the assize, ^* Si attentus tin 
assisam tanquam talis malefactor, condei 
tur ad mortem," must relate to manslai 
because the sheriff could not judge of nr 
It is directly otherwise : if be be attaii 
the assize as such a malefactor, that 
eommon oppressor- by slaughter, &c. I 
be condemned to deatli. This is an ex( 
from the rule, that murder was to be t 
the justice-ayr: this law appointed ii 
tried in that way, in case the person a 
could find his barras or borgh to com] 
next justice-ayr ; but if he could not, th 
riff was immediately empowered to trj 
by- the- bye, this does not concern pai 
fact, but concerns that general accusation 
ing a common oppressor, like to the ca 
sorncr, or one habite and repute an Eg 
Nor can the lawyers for the pannel fi 
word in the statutes of Alexander 2, wh 
pursuers refer to, that docs in the lea 
su])pose that niauslaughter was cap 
them : the direct contrary appears, tha 
slayers were to be tried, wiiethcr ^u 
murder or not; and if found not guilt 
they were to have the benelit of the 
And accordingly Skccu, in his annot 
refiTs directly to the acts of pari! 
which sir George Mackenzie takes not 
establishing the distinction, and to some 
English acts to the same purpose. 

As to the passage cited from Skeen, 
Treatise of Crimes, tit. Slaughter, there 
tainly a direct blunder in the printing ; o 
stead of these words, ** or casually by 
melle," probably it ought to have beeUj 
casually, or by chaud melle ;" for 
wise he directly contradicts himself, an 
acts of parliament which prove the vcr 
trary of what the pursuers would mali 
assert: yea, the very next paragraph 
blisheth the distinction in these wonis, 
that the gyrth or sanctuary is nae ref 
him wha commits slaughter be foretl 
fekNiy ;" trgo^ it was t refuga to him tha 



fff] firtht Murder of Ike EaH of Slrathmore. A. D. 1728. 



[118 




and chaudmelle ceased; and that it Vftm nerer 
objected, that malice or premeditate desigi'n was 
requisite to make the crime capital." And for 
this they take notice of two cases, Ctirric 
a^inst Fraser, July 1641, and Bruce against 
Marshal, April 1C44. But in the first place, 
the procurators for the pnnnel with reason say, 
that i£ that happened, it was an error in judg- 
ment ; for since the distinction was established 
by the old laws, an<l that there was no law at 
that time altering or repealing those old laws, 
the abolition of popery, and of the flying to th« 
kiik in consequence, was no reason for jutli^infj 
contrary to tbecif il law's that wore still standing; 
and if an esca|)e of that kind happened, it must 
be attributed to the over-great zeal, anfl, if ne 
may be allowed to say it, a sort of cnthusiastie 
keenness of those times : And we do appre- 
hend, that the act 1649, and the act of Charles 
S, were intended to correct the errors that by 
too great zeal bad then crept in. 

At the same time, as to the two cases cited, 
they are nothing to the purpose; for as to the 
first, which is Fraser's, there was not one cir- 
cumstance pled or proTcd which could make 
the slaughter chaudmelle: But, on the con« 
trary, it appeared direct premeditate murder, 
DO real provocation, but a quarrel about a staff; 
a murder committed in revenue, upon the 
slayer's hearing the person killed had murdered 
his brother, which plainly implied a preme- 
ditate design. What argument this can afford, 
is submitted. This indeed may he remarked, 
that the case gives some notion of the spirit of 
the times; the presbytery took evidence whe- 
ther the murder wus accidental or wilful, they 
found it to be wilful, and no ways ac<'idcntal ; 
their having done so, was taken us evidence in 
court, and even the wife of the deceased was 
sworn as a witness : things, it is hoped, not to * 
be drawn into example ; only so far it shews, 
that even then it was a considi-ration i»y the 
presbytery themselves, whether it was a wilful 
murder or not i* Which seems to point at an 
establishment of the distinction. But, in short, 
there is not one circumsttiuce in the \« hole case 
that could exclude the premeditation or fore- 
thought, but all quite on therontrary. 

The other ease of Marshall, in the year 164 1, 
is as little to tiie purpose; he was lib* lied tor wil- 
ful murder, and he confessed it, without pleading 
remains, that according to the law any defence, because indeed he had iimmo. Jle 

in his confession adjected some cirruiustances 
which might have o'lfeu sonieroloiir, hut in- 
deed very little for a ddcnce: !*nt he otlere<l 
nopniof even of those circunistauers ; and his 
own declaration could be no evith nee of ih'Mn. 
They were not inlrinsie. but «\iriiiNie qualities 
of the dec'laratitm. lie \\iu\ {.nveii rt'penti'd 
stabs with a knife. W here k ouuI 1m* th" f|iu>*i- 
tion that that was murder f AudtlieNt' tieiu^; :ill 
the instances the pursuers bring heiore the :irt 
of Charles 2, ii is plain they prove nothni:;' by 
them. 

As to the act, Ch:ules 2, [Sec tlic net at tho 
end] it is humbly insi<4ted for tin; paii:iel, that 
it introduces no new law against any perkoa 



ihlrtter, not by forethought felony, 

d hn eten from the arbitrary ponisli- 

rfouibughter. And Skeen himself, 

h hii OfGeitioD of tbe words chaud melted 

Igil Mil ii I^tio rirft, ** an hot, sudden tuilzie, 

vMili* which isopponed, as contrary to 

Ifdony ; and cites the act James 1. 

.kntteontrary in our law, if the effect 

■kMot be tbe 'same ? And upon the 

'Miooglit felony,' he in like man- 

b tke just distinction, and supports it 

MfHttwity of Cioero, in his treatise De 

flU^ skre be is writing, as a moralist, 

■latiiai orator. 

Hi pmaen' answer to the 8th act, 6 pari. 
X tifBte trifling; for nothing can be 

eki tbe opposition there stated betwixt 
fh fekmy and other slaughter : and 
*e let statutes, •• that if it be fore- 
fUMv, tbe slayer shall die ;'* tbe con- 
tliobrioiis, according to the plainest 
rkric,tliat if it be not forethought felo- 
MH not die, otherwise tbe act is ab- 
id IS to sir George Mackenzie's ob- 
ipn these words, it is certainly not 
iely placed as an observation upon 
keime it plainly relates to the act of 
fyiod therefore falls to be considered, 
KCDme to argue the import of that act. 
tfnoen' observation, by way of an- 
il Ik Slit act, pari. 3, James 1, is en- 
■vkt; for if it extend the difference 
■ wHhooight and chaud tneile to all 
^'ni u well as manslaughter; then 
it establishes the distinction in the 
tf MBilaaghter ; and so sir George I^Iac- 
HkVkfwise says, in his observations on 
^"^vell is in his Criminals. And as to 
■■fc observation, that chaud vielle is by 
''pBM law punishable by death ; that 
■ifalotheact of parliament Charles 2, 
■w lie examined with it. 
l*" pvraers have further pled, " that the 
j*^l if the sanctuary might he competent 
Vwcnnei were capital ;" which he founds 
^ tbe statutes of Alexander 2. But this is 
disputing ; for if the flying to the 
joioed with repentance, and so forth, 
the crime not capital, it is all the 
■wfhiof ; that is, in effect, to render the crime 
"apiujooty by another form, but still the 



^piffl of death was to be inflicted. At the 
^* buie that statute concennng reifs, 
■kwhy repentance abs4dves from the punish • 
JM| is somewhat |»eculiar, and docs not at 
I CSDtradict the other laws, which make or 
JpK chfiud mtlU not to lie capital ; and the 
■ pin nf thesutate, ap|>ointing, *'That if 
NUjUB fly to the kirk, the law shall l>e 
Mild observed to them," establishes the 
K that if they were not found murderers 
Ifcrtbought, I bey were to be returned to 
pdMry, and frecil from punishment. 
niionamsaj, "That after the Reforma- 
^■Mfhe^KS onr/s was in effect abolished, 
^ii irtiocttoo brtwixt forethought felony 



119] 2 GEORGE II. 

accused of slaughter, but ascertains somewhat 
in their favour, viz. ** That casual homicide, 
homicide in lawful dt^fence, and homicifle com- 
mitted upon thieves, Ace. shall not be punished 
by death. And then further statutes, That 
even in case of homicide casual, it shall be lei- 
some to the criminal judge, with advice of the 
counsel, to fine him in his means, &c. or to 
imprison him." This law seems introduced 
to correct some abuses that bad been ; whereby 
homicides falling under some of those descrip- 
tions, either had been punished with death, or 
at least that it had been made a doubt of, if 
they might not be so punisbed. W hat those cases 
were, does indeed nut appear frotu tlie records, 
80 far as the pannePs procurators l^now ; hut it 
seems such cases, at least such doubts, were. 
But then the act does not determine what was 
meant by casual homicide, and does by no 
means say, that oothinff was to be reckoned 
casnal homicide, except that which was merely 
accidental ; but, on the contrary, it leaves 
casual homicide to be explained, accortling .to 
the construction of former laws, wliether our 
own laws, or the laws of other nations. 

2do. It is plain from the act, that, by casual 
homicide, something is understood quite dif- 
iereikt, at least beyond slaughter merely acci- 
dental ; for the act is concerning the several 
degrees of casual homicide : And so even ho- 
micide in defence, and homicide committed 
upon thieves, &c. are brought under that ge- 
neral description of casual homicide ; and these 
last kinds are given as exemplifioations of the 
general description ; which shews, that casual 
homicide was intended to be opposed only to 
slaughter dolote committed either by preme- 
ditate forethought, or malice presumed to be 
Uken up from Uie circumstances immediately 
'preceding the act; and therefore, however 
critisal exceptions may be taken to the rule, 
yet materially there is no strong objection lies 
to it, because when ' casual' is taken in the ex- 
tensive signification, as opposite to fraudulent 
and dolose slaughter, all the species mentioned 
in the art do properly enough fall under it, 
and are degrees of casual homicide. And in- 
deed it is worth observing, and makes in this 
case for the panuel, that the rubric cannot be 
said to have been iiuligested or adjected by 
mere inadvertency, since the same rubric is 
maile use of in the act 1649, and again repeated 
in the act 1661, so many years af\er. 

And this rubric afTonls another plain argu* 
ment, that the legislative did at least consider 
that there might be degrees of casual bomt- 
cide, and consequently they could not under^ 
stand by that, onlv merely accidental slaughter, 
strictly so callca : Since there can be no de- 
grees of that ; it is but one, and does not admit 
of decrees. And therefore this is sufficient to 
shew, that more was meant than the pursuers 
incline to admit ; and if more was meant, that 
can allow of no other construction, than to bring 
under these words what the lawyers call 
** culpalde homicide," so as that your lordships 

•ad tae juiy moy JQ^gv fiwa oiwTnwwmwt^ 



Trial of James CamegUf 

whether the slaughter is to be 
casual, or really malicious, from 
pense. 

The last part of that act of par 
ther enforces that matter, which g 
not only to fine for the use of the : 
tions, but even to imprison for cast; 
Now, how is it possible to believe, it 
with anyju8tice,tbata man might b 
for a fiict intjrely innocent, and no 
culiHtble or criminal? Yet such hone 
accidental is : And tlierefore this 
monstration that the legislator und 
under the description of casual ho 
a fact might eome as carried a culf 
it, and was not absolutely accid 
nocent. 

And this being the phiin meanin 
it must remain only to consider, ^ 
pable homicide, or more particular! 
case, does not, in a true and legi 
under the words *' casual homicid< 
hope we can he under no difficulty 
good, from what has been alread; 
that even by the Jewish doctors a 
ters ofthe Mosaic law, homicide w 
and foresight, hath beeu called, 
micide;'* the passage above cit< 
collation of the Mosaic and Ronr 
pressly shews it. 8do, all that b 
from the texts of the civil law, i 
prove it; since they directly ca 
** ex subito impetu, ex calore ii 
rixa," where there was just 
casual ; '* casu magis ^uam v( 
casui magis ouam noxae imputam 
all the rest or their expressions | 
nominating all slaughters casual 
sense, except that which is done 
occidendi. Slio, The expressions 
old laws prove the same thing ; t 
slaughters are called chaud meii 
medley^ which is casual : And so S 
in the very place the pursuers 
manslaughter committed voluntar 
thought felony, or not (which 
degrees be received) casually by 
There your lordships see cAaiMf 
pressly brought mider the descripi i 
and so that being the case, we a 
letter of the act Charles 9, we i 
under the first branch of casual ho 

And as we apprehend this hoU 
so it holds more particularly in 
case, where, whaterer was de«i| 
Brtdgeton, yet, as to my loni Stn 
killing was casual, and therefore 
nnder the words of the statute. 

It affbixls DO solid argument ag 
the act of parliament bearn these v 
removing of all qiieatioD and dow 
arise hereafter in orioiinal pursuit 
tpr." For, Imo, Those wonls i 
understood with r^ard to the parti 
ed Dpon, that it is for removing at 
thooe partieiiUars ; for it can nexar I 

thai Ibif or«py M of i^iriiafMit 1 




ft/the EarinfStTnlh: 

en B{t«i DDfoivseta casra, mkoy 
'illupjmn that roulil --' ''" — 

of tb>[ law : I'ur in 



A. D. 1728. 



e, ho- 
ifiutfamob, Btrkitlj 
^■■^, ii.li iiiini'i' iiiFiiF nf tlie noi^i; or 
kaaa^ cniiiEiititi! ill ^iii.'ii>abDK Uie mcspc 
rfklWKiuillj j in |jr ironed, Bndeuilem- 
■■nfiaia^iti : anil mtoy other caw! mn; 
kl%«i fii'i Jito, AccunlrDK lu tlie inter- 
iili^n, Ibe *clof parlianienl 



Cl-J 



ihcwnae we give ihem; sod, ou 
i> t dnta aM reinote all ^iieslionH, 
'luwiicidn, anil lliis tpry case be not 
bilmi tlie law ha« •Uiutsil (iiithinB: 
B)b«r inie <*■; or other, but hsth 
-I upon murder merely accideolal, 
kitUint, and the ol'liers lliprein 
, thai it may he pl?<l with- 

. B culpable lioiFiicide ta a 

||f iHarioide in deteuce ; lliouj.'ti oat 
■" ^"*llre (if life, it is in dof'ence 
' h^vry thrcKteotd, and ex- 
jwior injury alreaily i^feu : 
noaideratinna, ue humbly a |>)ire- 
181 of obrlunieiit makea DMhiii|i|' 
^DM, hut ratlier favuui'M him, 
nl a hnmidilt^ imrely 
tlint waa killed : and 
irely diiiingiushe$ hi* 
' olber cue that hnih been tried 
parliainenl- And it may not 
lu ii»Upe, ihut air Geoi^e Mac- 
" Tb» wurd " cbhuU,' ia the ru- 
terfik^ia<i, I* ukeu in the bx W|n>>fica- 
'>Kk." Aad » >-y not Iheu tali* it in tbe tAtae 
lw%lfcali n'in tlic alatutnry )Mrl f 

jttivw ptwin tu [akr ludice d' sir George 
lil^Mw'a DbaervaliniiB upon the 5tM act, 
^mn. AnJ in itu) fir«l (ijacr, it'cir Georce 
liflffiHBd lo go aa far in hi« niiininn tw tEe 
■IMa pIraJ, we must beg leave to oiiiioDe 
lfli«,i«l sAoiit thoiiitvrprelaliiiD ol il lo 
W0 ImMiI^' Judgment, as ntil suffidiently 
■nanng hM opinion. 2iIo, sir George saya 
" " ' ~ " U ihe alauKhter'f hetii^ cmduI in 
•e, where the lilotv was inlended 
■er MTiuk by Iktatity. 3tio, 
Il (0 Hu liir aa the ]iurauen 
Id auMdi tU«»i ; Ibr, in hit tibHTTBtion on 
M ut4 ilu uri, liB nnly «ayi in |^neral, 
Tbal cA^itd mtiit at Aomicidiiun in rixa com- 
^iMw, II npital Ijy our [ireMUl kw :" and kii 
im aamaaj v^'Mni Ibr iuMaace, where the 
A* m tJio priiTokor, wlit<ra he reilffatre 
ktAv> )■ auch a maimer, as to shew a Ibre- 
bvkt a^ rnriBCil deii^n, although not ni'e- 
■UU«d lor a lonj; intvrtat ut lime betore : 
m m tiwrce dnm l>v »u mtuuiq uy, that 



4ltcraarda I'l l« iioIiC(nI. 
rtatiuo liji III till' OOlh act il no wayi 
' " That uuirder. 



il piiQuhatite nilh death :" by which lie n 
mr-an pretiivdiiatcil tnatice, and that ta t 
liir no doubl malice, wlieiv it oui be pri-iu 
IVoin Ihe iict ithelt', anil where tli« counary _ 
not >|ipear from circiiuislances, ii puiiisbl 
by death, without further lurellioi^hl ; '■ 
then he aubjoins an esce|ilio. ' ' ' ' 

the mailer where it was, " exoepi," sajBta 
" it be fMUoJ j" that is, aecordintr lo Ihe i 
of I lie law : and so the gueslion remaiut, w 
caaiial in Ihe nense ol' that law ? 

The pursucra u«o an argument, which t( 
to lie or no force, " That if inaae1aught*r *■■ 
not capital, llien the crawn could nnt parilon 
any capital slau^terj because by »ur Uw the 
crown could not paidon murder." IVe mit;ht 
easily ailmit the whole, wilhoul biiniog our 
argument ; for if it be true that the crown 
could not nanloD murder, then ii in likewice 
true that ne coiiJd not panluu any shiiighter 
tliat was cftpital ; because no daughter m'aa 
capital but murder: neierihelesii the puskion, 
that llie crown could nol pardon murder, ii nM 
supported by practice, and, we doubl, not by 
nor law; because iu aereral caaei. cten ok' 
murder, Ihe very thiutc statuted is, " That lb* 
|ierB(in of the criminnl slmtl be in the kisg'a 
will ;" consequenily ihe kii^ caji pudon, u 
well aa order to he put to deaui. 

The pursueri, in their InfutmatJuii,. next gw 
on lo nienlion a ^enl many caaeii ihii bavft 
been judged by the Coui'i since tlie act IfiGI ; 
anil the first menlioned is ihitt of Wm. Dou^- 
la>i, which appears iu the Ilecords, and i» no- 
lie^ by sir George Atackeozie, and is indeed 
nuticedbv hiui u afoihtdulinnfor saiui-ihinga, 
wherein be leema tn go tun far. But Ihi* ewe 
will iieief deicj'ie any regard; it \ias ilwaja 
been linked uprm as a liaril one, end we ars. 
ulV-iId a tejiroach on the justice of the nation. 
But at lh« same lime the fdulidid not lye oa 
IlieCourij il uas tiuly Ihejiiry ; fur ihe Irial 
went in i^eiieral upon tlie url and {larl ; awl 
there Mppears no piiriicahir pleadings to this 
purpose un record in thut case : tu that what 
sir GeoT^ Bays of il must he froin mere me- 
mory of tbiuifs ont thouKix Ri to be recorded. 

The next case mentioned i» that ol >'ico|. 
son, in the year 1GT3, which can never tnajM 
for the piirsuem, Iiei-aiise there your lordships 
aiulained boih tiie libel and the defeuoe, Iboiigli 
indeed Ibe defciioe wa» not prated : and ihm* 
fure, if the pursuers say, Ihnt the dclience waa 
U|>on chauj mtllr, or culpalde homicide ; the 
case is witli us, because your lordships aui' 
taiaed Ibe defence. And eiUuiugJi i|i reality 
Ihe crinie was (trored to be ttilfut murder, and 
the derciiie noi proved ; yet so far it is on th« 
paunel's side, ihni ihc advitLate iiuisied Nicol- 
son. was vcnuni in re iltkita, by varrjins a 
gun. which be ncknuwledued uaed lu gu naou 
haH'-beud; yd y»ur lordsiiip<i •usiained tba 
ilef^iioe, •' That the gun weui offiu a slruiT* 
gle," Aud if an arguneol from a Uwycr'a 
pIcBdiug be Kood for any l1>ing. sir George 
ftliLuktuixic idi-d for the pannel, '' ' 



' 123] 2 GEORGE IL 

•n, *' That there was no prejudice against the 
|>er8on killed, and that the gun went off in a 
■trufr^e." But, indeed, the case is naught in the 
argument, and it seems ?ery strange why it is 
cited : it is true the man was said to be drunk, 
and there was not a pre? ious quarrel ; but then 
there was no provocation, no justa causa ira- 
cundiay and no iracundia at alt ; but the gun 
was twice deliberately snapped, and the third 
time the man was killed. 

The third case mentioned, is Murray contra 
Gray, yet less to the purpose than any other : 
for there, the giving the wound was libelled so 
far premeditate, that the slayer followed the 
person out or the house where he was, and 
killed him without an^ provocation : and not one 
single fact was pled \n defence, but a strange 
demand made, that the lords should make an 
inquisition, in order to discover who was the 
first aggressor ; but it was not once pled that 
the defunct was the aggrressor or provoker. 
What can be the meaning of citing such cases? 

The next case cited is that of AinI, in the year 
1693 ; which indeed is something more to the 
|mr(K)se, but yet does not answer the pursuers' 
intention : for the lords did not there find, that 
every homicide was capital, except what was 
merely accidental ; they indeed sustained the 
libel, and repelled the defences, which were 
mainly founded U|M)n provocation hy ill words 
from a woman, and her throwing a chamber- 
pot at the pannePs face, who was a soldier : 
which the lords did not find sufficient to excul- 
pate from the libel, which bore reiterate strokes 
to have been given the woman in her own door 
(which, by the b^re, tvas hamesucken) she 
thrown over ihe stairs, and pursued by the then 
pannel. That case was very singular : first, 
an attack upon a woman by a soldier, who 
ou};ht to have contemned insults from the fe- 
male sex, at least, not returned them with any 
blows : DO injury of that kind from a woman 
can justify blows given, much less reiterated 
blows, and deliberately trampling to death, 
throve ing her over her stair, and still continuing 
to pursue her : there, the presumed difference 
of strength, and difference of the sex, made 
such an attack a barbarous murder ; just as an 
invasion by a much stronger man a^inst a 
weaker, or by a man against a woman, although 
not with a mortal weapon, would make a blow 
with a mortal weapon, given by such a woman 
or weaker person, come within the description 
of self-defence : which is a case that lawyers 
state, although the same thing would not be 
good, if they were of equal strength, or that 
the invasion was by the won'.an, or person of 
weaker strength. 

Another case mentioned, is that of Carmi- 
•hael in the year 1694. But sure your lord- 
ships must l>e weary of so many cases, so little 
to tlie purpose ; for neither there, is there one 
circtimstance pled upon to exclude forethought, 
or to show that the thine was casual in any 
sense ; but some trifling dyjections against the 
firm of the libel : only, indeed, drankeDntss, 
by itself, was foandcd on, which your kirdships 



IVial of James Carnegie^ 

did not sustain. And who can doubt i 
be sop 

The seventh case mentioned by the pii 
is that of George Cuming, in tlie yeai 
And upon locking into the case, it n 
owned, that it seems a very narrow, bar 
but then the whole burden of the pi: 
pleading turns upon this. That supposin 
was a rtxa, and that the thing happenc 
a sudden quarrel ; yet Cuming himself < 
first provoker, and the aucior rixa, and 
fore could not plead the benefit even < 
defence ; whicn indeed brings the case 
what all lawyers ag^e on. And had 
been for that circumstance, it is imposs: 
decision could have gone as it went : fo 
feet, the kingf's advocate admitted the d 
barring that circumstance ; but insistei 
that as what governed the case. Yet s 
decision is narrow. 

The pursuers also mention the case o 
net of Carlops, anno 1711. But it is 
ajgainst them ; and it being to be noli 
the pannel, shall not be dwelt upon here 

The next case is that of Hamilton of 
anno 1716 ; which does not all meet : fo 
a plain murder was libelled, that the 
first made several pushes with his swo 
scabbard upon it ; and not content wit 
drew the sword, and gave the defunct th 
tal wound. And no provocation was ple« 
on the part of the pannel, except what w 
bal only. And the only real injury, by s 
with the sword and scabbard, was ad mi 
have been given by the pannel. And i 
it was there pled, that the defunct I 
rushed upon the sword, that was ronti 
the libel. And if the fact had come so c 
libel would not have been proved. And 
fore, that case does not all meet; foi 
were not sufficient circumstances to c 
the dole, or so much as to make a honn 
euiposum. 

Another case they mention, is that ol 
mas Koss, and Jeffery Roberts, 20th 
1716 ; which makes against the nursuei 
is set forth by themselves : for there tli 
did sustain the defence of provocation by 
receiving a blow on the face, being pullet 
to the ground, and beat with a great s 
car- rung, relevant to restrict the libel tos 
trary punishment. And thongh the 
**To tne imminent danj^erof his life,*' 
sert, as they were pled m the defence ; ^ 
was not a fact, but a consequence inferrc 
the being struck with a sticK. And if th 
culum vita bad been the foundation on 
the interlocutor went, then it must hav* 
unjust ; because no man alive ever dc 
that a man in self-defence might lawful 
without being subject to any arbitrary p 
ment whatsoever : but the case was, th« 
lordships found the provocation and real i 
reduced the fact to a homicidium cul 
Yon indeed sustained the reply, that tl 
funct was held by Jeffrey at the time of i 
ing the wound, becaoM tbit oxdodcd tl 



for the Murder of' the Earl of Strathmore. A. D. 172S. 



[125 



oT the pinnel's being unon the ^iinJ 
be gave the wound, and made the fact 
It to murder ; because it never was 
d, but if one stab another, especial iv with 
*, which is stabbin|^ in the must baruamus 
when that otiier is held, and so put oot 
ilaie of Joine further injury, that is mur- 
jf the la w of all nations. 
tfonoers likewise mention a case of Da- 
i^ without noticing either date or circum- 
■; and therefore the pannel must con- 
Ibere was no defence projiosed, exclusive 
Me or forethought, 
caaeof Lindsay and Brock, the Greenock 
I, is very far from nutting the ca^e out 
k, or indeed touching it at all. The 
18, that the defunct was enticed out of 
Be, and was attackefl by two at the same 
asd when he and they were on the 
Ij one of them, which came out to be 
y, slahhed him in the throat with a |)cn- 
Tbere your lordships did not sustain 
■e as capital against them both, even 
ae art and part, but only against the one 
Nokl appear to have given tlie stab, and 
■K ont to be Lindsay : but tlien indeed 
ood, not without difference in opinions, 
vcriheless he had the benefit of the in- 
y^ upon this foundation, ihatthongh the 
MM was dolosumy because of the cir- 
laers, yet it was not from malice preme- 
: and the majority were of opinion, that 
JRBnity excluded nothing but prcniedi- 
■nier, and did not touch any case done 
a, notwithstanding tlie person guilty 
W the auclor rixa. This does by no 
I ^etertnine any question lietvrixt a dolo- 
ai cklposum homicidium ; for that fact 
safitd to be do'osnmy and indeed so found. 
ne. u proves that an indemnity may reach 
l^ameiJium dolosum^ ^^ here the dole arose 
^ely, and not ex iutcrvallo ; hut that 
oth.ng to this question, nor is it proper to 
ipiiii the argument about the iudenniity, 
lai the judgment is given. 
r%<e of Mathews, the soldier, the pur- 
idmit, was of the same nature, and so 
no other answer; only, that, in that 
hirre were no circumstances sufficient to 
e the dole, or make it only a culpable 
de. 

M are all the cases the pursuers have 
'ned. and, if numbers would do, no doubt 
is enough ; but your lordships are to 
bow far to the purpose : and one thinj^r is 
Uible with regnrd to them all, that not 
them touches the cn*i** in iiand, in so far 
?erDS the slaughter's being casual as to 
d Strathmore, the invasion being intend- 
iDfl Bridgeton. 

DOW the <xiunsel for the pannel be;; leave 
notice <d' several decisions, even binre 
vhich directly establish the point pled 
pannel ; ami thc^ first is I\Iason's case in 
ar 1G74, to he seen in the Itecord ; and 
iffrred by sir George Mackenzie. Ala- 
is accuitd of killing Halnton j tlia de- 



fences were three, first. That Ralston had fol- 
lowed Mason from house to house, at last put 
violent hands upon him ; whereby Mason was 
forced to throw him off*, and that he fell against 
a stool. 2do, That the wotmd was not mortal^ 
but Ralston died ex maloregimine. 3tio. 1'hat 
the homicide was merely casual, and io self- 
defence, RaNton being the aggressor. The 
lords sustained the litiel only rete\ant to infer 
the panam extraordinariam^ and separately 
sustained the other defences to assoilzie in tO" 
iuntf and remitted all to the knowledge of tbs 
innuest. Here your lordships sec, the killing 
only sustained ad panam extruordinariam^ with- 
out regard to the three deft: noes of casual ho- 
micide, self-defence, and dying ex malo regi'^ 
mine ; for they are all sustained separately to 
assoilzie, even from the pana extraordinaria : 
here then was a culpable homicide, sustained 
only ad panam cxtraordinariam^ though neither 
merely casual, nor in self- defence ; and so thera 
can be no judgment more direct upon the point 
now pled. 

And here the pannel must notice, once for 
all, that it makes nothing to this question, that 
iu that, and other like cases to be mentioned, 
a mortal weapon was not used ; for it is one 
question, what is sufficient to make a liomicidt 
only culpable P And quite another, whether, ii| 
our law, there is such a thing as culpable ho- 
micide, though neither merely casual, nor iu 
self-ddence P That of the using a deadly wea^ 
|>on enters into the argument, whether a homi- 
cide is dolose or culpable only ? But it makes 
nothing to the other question, since homicide 
may not be merely casual, although no mortal 
weapon is used, as appears both from this de- 
cision, and the case of Bain, cited for the pur- 
suers. 

Another case is that of Cricrson and others, 
12th March, 168 1 ; where the paunels being 
accused of murder, for killing the defunct in a 
scuffle ; the defence proponed was, that the de- 
funct was the first aggressor, and did invade 
the pannels, or one or otiier of them ; and that 
William Crierson, or one or other of thera, be- 
ing standinuf hefore the fire, the defunct threw 
the said William, or one or other of them, iu 
the fire, and fell upon him himself; and then, 
after the scuffle was over, the defunct did rij^e, 
walked up and down, discoursed, and of new 
aga>n heat the said William (srierson, and 
threatened to kill him if he would not be gone; 
that the defunct went in goo.l health to the 
door thereafter. These the lords sustained re- 
levant to liberate from the ordinary pain of 
death. Here is another decision in point ; the 
crime was not found merely casual, or the ('ourt 
must have assoilzied ; at least, could only have 
imprisoned, and could have iiillicted no other 
arbitrary punishin. iit. But that was not the 
case, it' was Ibund culjiable, and not merely 
casual ; and therefore the punisiiment rcbtriei- 
ed. Sure then it is not true in law, that all ho- 
micides arc cajiilal, un1e»>s the}- be merely ca- 
sual. 

A third case, is thi^t of 3Iaxwell and otiiar- 



131] 



2 GEORGE IL 



ftlaui^hter; for the peace is broken by the 
penton killed, and with aR iudignity to him 
that received the assault : besides, he that was 
so aflTi-onted miffht reasonably apprehend, that 
he that treated nim in that uianner might have 
some further design upon him/' Your lord- 
ships see how close this is to the case: the 
insult ^nd indignity done by Bridgetou was 
?ast1v stronger than any thing here mentioned, 
and having received such an affront, the panuel 
had reason to expect worse ; more especially 
when, as we offered to .prove, Bridgeton was 
endeavouring to pull out my lord Strathmore's 
sword. 

We must likewise humbly ref^r to several 
cases set down by serjeaut Hawkins, in his 
Pleas of the Crown, which fully agree with 
what we now plead ; and particularly take 
notice of what he says, pag. 84. " If a third 
person hap|>en, accidentally happen, to be 
killed by one. engaged in a combat with ano- 
ther, upon a sudden quarrel, it seeiqs that he 
^ho kills him is guilty of manslaughter only." 
And it would seem that there is even a diffe- 
rence made, betwixt killing a person that en- 
deavours to interpose, if he tell that be comes 
for that purpose, and killing one who acci- 
dentally is interposed betwixt the two contend- 
ing parties; which was my lord Stratlimore's 
case. The killing him who interposes to se- 
parate, if he give notice what he is doing, is 
reckoned worse than the killing the other. 
And this obsjervation shews that the present 
case is stronger than the above-cited case of 
Graham, where your lordships restricted it to 
an arbitrary punishment. And what that au- 
thor observes, confirms a distinction we have 
made, betwixt a man quarrelling with another, 
and killing a third party, where it' is proved 
the killer had a felonious intention to marder 
the other, and the case where that does not 
appear; for however, in the first case, he 
might be guilty of the murder of the third 
party, yet if a design to murder the person he 
quarrelled with is not proved, then he can never 
suffer capitally fur killing the third party : and 
we have already endeavoured to prove, that 
that must be the case as to Bridgeton, where 
he ga\e the provocation, and no act followed 
againsi him sufficient in law to establish a 
desi^ of murdering him. 

The pursuers have cited the same books, 
and Mawgridge's Case, as for them ; but that 
we submit. The particular cases of Hollo way, 
and Williams the Welchraan, spoke of by 
Keyling, are not at all to the purpose : the 
Weli-hman's case was no judgment; but nei- 
ther in that nor in Holloway's was there any 
reul |)ersonal injury, on which a great stress is 
laid in all these questions. 

The pursuers mention another case stated, 
but never adjudged; a person shooting at 
fowls with an inteut to steal them, accidentally 
kills a man ; that will be murder. This per- 
haps may be justly doubled. Sure it wouM 
be too severe. But supposing it were so, it 
iiof M lioportmot: tttaliBg, treo of fbwliy 



Trial of James Caruegie^ 

by the law of England, is felony of 
prepense ; and where a roan attemp 
commit one felony, does another, there 
doubt but in strict law he is guilty of the 
committed.* But what is that to the a 
provocation by a real injury ? 

The pursuers have quoted the auth< 
V<iet, and a decision observed by bin 
Sande, to prove, that where one man i 
tended to be killed, and another sla! 
crime is capital : in which, no doub 
differs from many as learned lawyers, i 
of the other side. But his opinion, a 
of Sande, is obviated by what is ahead 
it is only in the case of no provocation 
injury on the part of him who was desi 
be killed. And Sdo, It is always ta 
granted by Voet, and all who are of tl 
nion, that the design of murderins^ the 
intended to be inviuled, do appear and is 
but we have already shewn, that cannot 
in the present case. 

The pursuers pretended, that then 
circumstance in the libel which implied 
against the earl of Strathmore, viz. 
the thrust given was followed by a 
push." But as there is nothing in this 
may be the subject of imagination, 1 
never be the subject of proof, unless 
pretended, as it is not, that the uanut 
back or out his sword, and made a 
thrust ; which will appear not to be tri 
the nature of the wound ; and the thr 
be found to have been so momentary, 
was impossible. Sdo, Jf any thing 11 
happened, it will appear, tfiat there 
more in it, but the pannel's staggei 
moving the sword, by his weight Icanin 
it. Stio, There is no relevaucy in it 
the fact being, that the pannel push* 
Bridgeton : and no circumstance will i 
appear, that he knew he had touched i 
of Strathmore till some time after the 
was perfected. 

The pursuers further pretended, " ' 
they had libelled malice, they would 
from other antecedent facts that had hi 
some time before, whereby it would 
that there was enmity betwixt the deft 
the pannel." 

It is answered for the pannel, Imo, 
such facts being libelled, nor, to this 
condescended upon, cither in the deba 
formation, they can by no means er 

* At the Lent assizes at Chelm 
Essex, 1763, two sailors were convi 
the murder of a farmer : the case v 
sailors came to steal the farmer's foi 
farmer with his son pur^iued them ; on 
sailors struck the farmer several blowi 
arm, which (though not likely) kill 
This was held to be murder ; tit*cause 
they were about was unlawful ; but thi 
after several respites from execution, 
his majesty's most gracious pardon. 
Edition. 



2 GEORGE II. 



ISfiJ 

CuuA JuRicuBu, S. D. N. KcnK tenU in 
novoSeHioiiudanMBargi de Kdiobui^b, 
wcuDda die tncnaw Augurti, muUmjoio 
MptiDgoiteaimo Tigninw octavo, per 
boDorabile* finM Aduunm Cockburvs d« 
OrmiUoun, Jwticitriuni Clericum; Do- 
tuiniim Gulielmani C&lderwiwd de Pol- 
' tnim; H»([i(trilm DiviJein Erikine de 
Dud, Dominum Giitlunim l:>riDKle de 
Nrwhall, et lUigiMraD) Aodream FTBteher 
de Blilloun, CarainiaiiouriM Jiulidvic 
dicL 8. D. N. Regia. 

Cuiu kgitime affirmata. 

JiMKt Cam«jt«,of ElDbiven, pannd. 



Tbe Lordi proceeded lo make choice of the 
ftUowiog Anizen : 



Sir Robert DickBMi, of loTenak. 
Geonce Loch, of Drylav. 

*Jotin Wiiioa of Slumja. 
' Watt. Riddel, of GraDton. 
Geor|re Warrender, of Burntafteld. 
Tho. BioKOfOf Bonin({Uin. 
•Geoive Haliburlon, of Fordel. 
Jtmrt Bftlfour, of Pilrig-. 
Robrrt Duodat, merchaat, in Ediabnrgfa. 
Darid Inglis, aier^aiit, there. 
David Burd, mercbaot, Uiere. 
Alex. Blackwood, raerchaol, there. 
, 'John Couls, mercheni, there. 
Julia Slereo, merchaat, there. 
James Iter, ^IJsmitli, there. 



The aboTe asaize beini; all lawfully ■worn, 
•od no lanfiil objectiau in the cootrary, tbe 
punueis for prabatioa adduced tbe wiioccin 
■Iter de[ii>niD<:, vii. 

Riitrt Hipburn-c, hammennau, in Forfar, 
flolenm'y tw^rn, ixirfreil, cximiacd and inter- 
rugate, de|ioneu, Tuat lie vat io tbe lii.in of 
Vorfar, the 9:\i ilay of Aluy last, betwiiLt the 
hours of i'ii{ht and cine o'clock at nigbt, where 
be ilid liee the decvaaed earl of Strathinore, loril 
Roifrhitt, aod Mr. TLoniai Lyoa my lord 
Siratbmore's brolher, nalkiofr ia tbe tlreeti; 
and al thf amu lime did see Lyon «f Bcidge- 
lOD, and Fiabnreo the paimel, Elandiuii uear lo 
the lady Auchiahoaic her houic, upon the 
alrecl; what words pa-sed betwit^t then), Le 
being- si a ilisuucu could not hear; iiw firidge- 
* — --- e Fiuliaven a |iii£h with hit band; and 



Triat ofjamet Carnegk, 

oot know irbelber be got it drawn 
law Fin haven draw bif iword befor 
offered to drai* my Ion) 8tialhni 
when Bridgeton wa> coming upfTo 
where FinhoTen fell, he lookei 
ihonkler, and seeing Flnharrn wil 
drawn, be went fatter up to my 
more, aiiaid is ; and when Finbati 
my lord Strathmore being standing 
of butts from the place where Fii 
ud when Bndgeton came op, and i 
to draw my lord Strath more' i hw 
LI, my lord turned bim about, and 
Ion aaide, and made tome tte^S to 
haTcn, who would be at that (irae 
eight ells from my lord; and he 
lord endeavour to take Fiuhaven 
when they roet, and in a little all 
he did tee my lord withdraw himse 
the rest of the company, and sa 
down his breeches, and (ifl up hii 
heard him say be had got a woui 
pealed llieie words three titoes, ai 
pat op hia shirt, ond in a sliorl tin 
taw Riy lord fall lo the ffrouiid. A< 
lerrogale, ifbe taw Finlia*en the f 
a thrust at niy lord Slralhmurc ivii 
Deponed, he did not tee him maki 
but al that time did see no other s 
but Finhaven's ; and after uiy Ion 
taw several other twords drawn. 
That there was no other compai 
with my lord but uiy lord Ro^el 
OHO brother Mr. Thomas, bcfure lb: 
and Finliareu eame up : AoA tliai 
this that be has deponed U[H)D, fr 
abop-door, which was about teveii i 
dikiance from that port of tlic si 
my lord Siraibmore wa* standin";. 
ioierro^Ie, if he knowt n hat cam 
ton, after he came up to my lord \ 
That he knew not wliat bccume a 
ader my lord put him aside : \i 
wat at much day-light s« he could 
has deponed upon : And that F 
naanel wo* in boutt ; aud Ihal he 
fast up after Bridgelon, but Brii 
flitter lotiards my lord ; and thai v 
Strathmore felt, he saw Thomiu . 
man, lake up my lord from the i 
saw no other body assisting. ] 
taw the piinnel't sword tttisled oul 
bv Sir. Thomas, or my lord Ri 
which of I hem, he koon's not; 
was after my lord fell. And depoi 
. did see the »ound in my lopj't b 
I below the navel; and that it iv 
Deponed, Tlial he taw Finhavc 
iword wat twitted out of hit band 



Fiabaveii fell in tbe Ktiiler ; and be taw a 
▼ant of the ilcceucd earl of Strathmore help 
Finhaven up out of the (^Herj awd when 



JeTy; but that Bridgctoo comii^f up 

ft aler ikaa Finhaven, he taw Bridgetun offer 
••4M>BjlotdbinibBan'iiwatdi bMdw 



And thia ia tbe tratk •* he ihoul 

U«d. noBLrr I 

Ad. Coci 

Xal*, Thtynemttta for the p 
Oaefsn pwgtDg) olgcctad to ^ i 






\Si} finieiiimltrB/lheEarlqfStratlaion. A. D. 17«S. 



[13S 



^M HrftaM, why he oi^ht out to be k I Bridsetoo riUiliDg tM[elb«r near Is the Mj 
■■Miitbiieue-, beciuM, •ince hit citation Aui'literhonu berbdginf; and mi ontherc- 



ke km left to ibe cuiwilenlwu of 



•IWllclbBkedGiid^he had now an opuor- 

aM ku| bin, and would dO it if bo 
' U tMog iheae cxptMHOo* were 
Mf (HNS igaiiiit him, by two coQcurring 
vHMkia MeoM of the court and jury, 
taABN^lM aune niKht be lo luarkM in 
iiWi(f aOMtmal. Whicli, and iliii de- 

t."' 

laif hrd RiatkiU, Bo)«nnly aworD, pDrt^ed, 
hWhJ inlerroirate, depooH, (beinrin- 
■Wnh- the paonel) That the time libeled, 
fc famU «n tltK Kccnioo of ■ borying, wai 
iMliieMnpaay with the decnsol carl of 
HMir, the pnonpl, and olb?r« ; and loge- 
■iifdiwd in Mr. Cirncfrii! nf Loun*a 
Ip^ mt after dioDcr and the burying was 
"^rj Iweiher w*ot to the haiue of Mr, 
l,titA ofPor^, where t)iejr conttDUfd 
(MMdenble lime, drinking a gUw of 
and after tfiej letl that hooK, 
in the hooae of my lady Aocb- 
in the same low 0, the panncFi Bitter, 
I deceased Eari had g«De to make a 
k Dffwneil, That during all (bat day. and 
Itwreral nlicei where tlic deceannl Eari, 
iMad, and tbe reat of the company were, 
jitdrponent, ohaFrred nothing but grent 
inaadfrimdahip betwixt the deceaaed Earl 
lit iianiiel. Deponed, That before Ihey 
nam the lady Auchterbouie'a, the 
la|ipeared lo iIig df|inDeDt tu be drunk, 
I br gune in drink, to tbe degree of 

tiirii;; and he ubs erred the pa unci 
plrutifully ill thc&e several houcea. De- 
ll. That he the di'poucni, during the time 
bbrin^with the said compaov, wanmoatlv 
Htd ID con venial ion with the ileceiMd Earl, 
■ bd not the occakinn to oLierre vvliat 

Biri in convcrSBliuu bctwJNt the poiincl aud 
Lyno of IJridt^tun : iinil beiug interrogate 
■ ahat be knew of ilie char.ieler and 
^a of the pauoul ? Deiwned, That, ac- 
Meg to ilto ilrpaurnt'it kuowlcdgo of him, 
U bail bi'i'ii of Uing cnntin nance, aud |>ar- 
iag to tlie characler Im the 

RMdWein the country, be waa thought 
taaite ftiarrelmnie in lii^ temper, but lo be 
ll peacriitilc and t;n<id dispomtiou. Causa 
tMtipultt. And ilii« na»tlie Iruih as I 
nld unvrt lo God. Rosehill. 

D. EasKiNG. 

ViUiaai Dmi;lai, lawful aon to William 

^(lu, )a1e proTOft nod chirurgeon-apolhe- 

4n Forfar, solemnly utrnrn, purged, en- 

M, and intarroifite tor the pursuen, De- 

^d. That on that day wher^un the deceait 

if litnthmore wan woumled, he the dppo- 

*aa at Forfar, and on the itreels, wlicrt 

4 tee ibe Earl with my lord llmchill and 

n. Lyon bi« brother, and at the aaiiiE 



aAer lookinir about, ba obeerred FinbuTm 
leaning and falling backwardi into a keonel i 
-~ I alter getting oitt of it, which he anppared 
the deponent to do very ioon, he drew Ilia 
award, and with it went up to the oonpany 
where the Earl, Bridgeton, and the real were i 
and at tbe flnt aight, upnn the patutel'a m> 
proachiog to ilie Earl, Bridgeton and Ik 
reft, Bridgeton was then inlerposed bclwist 
the Earl and the pannel ; but all of a auiMea 
and a clap, the Earl came to be interpovad 
betwikt Bridgeton and the punuel ; and i|t lli* 
time iif the aaid Earl's in terpnaiiion, tliepaond 
was within the length of bin anord at the plac« 
where Bridgeton was atanding ', that ii to lay, 
had been atanding. Deponed, That he did o»> 
aerre tbe pannet make a thrust with hii aword, 
and at the time of to duing, the Earl wai ataod- 
iug next tbe paonel, and hit face lowarda bin. 
Deponed, That the Ear) teceired a wouod in 
hit belly, and aJUr receir iug it, heaaw him poll 
hii ahirt from under bi« breecbet, aud at thn 
same lime taw him blooding, and toon tbere- 
after hit lordship tell down, anil be heard 
him say, that he hail got it ; and before th* 
Earl fell, and while he waa upon the ground, 
he did otwerre his brother Mr. Thoma*, with 
hi« drawn swori), twist Finhateo'i tnord oot 
of his band, after seeing and hearing aoDM 
clashing of tlieir swordt : but tt the time when 
Finliaven made tbe piuh,a* taidis,heabserTcd 
no other aword drawn but Fiiibareo'i ; and at 
the time when thepinocl recorered liislhrilil, 
the pannel aod the Earl were vrry near aneaiH>< 
ther : and all this time, the dejiooeDt waa 
about the length of this room, or tome more, 
distant from the said Uarl aod the pannel, 
whose aides were oppmite to the deponent; nod 
aRcr the earl uf Strathmnra's I'all, and that liit 
bnither Mr. Tliomas twilled the sirord out of 
the pannel's hand, the iiauDtl, who waa in 
lioots, ran towards bis si»tf i 's dnnr : uftcr the 
deceived Euil was carried Ut a house, and bia 
wuuoil WHS driDl, he heard his lontship say, 
th^tuHer the sword eniNcil hit helly, he tho 
pannel gave it a second thrust. Dejuined, That 
when he observed Finharen liiiliug into tho 
piHldle, at ahnvehuiil, there was none stauding 
with biinor by liim NutMr, LyouorBHilgeton, 
And wlint he lias above ilepoucd, hsppened on 
ibcQibday of May last, alwiit the hour of nine 
id niglit. CuM(t i;ci«ari.r^<ifef. And this hm 
truth as he should answer lo <iud. 

^ViLL. nouci.a*. 
1>A. Erskine. 

AndrtK Douglai, alto lawful son to the aaid 
William Douglas, iiultmn1y8iTurn,pui\:ed,exa- 
miiii'd and Inti^rrogate, Uipo'iPil.'l'hat the lim* 
Mid p lure libelled, thedi'|>ciiii-[ii taw JoboLyon 
ul Uriil:;('ioD push the |iBniie! upon tlie breatl, 
whereby the puniicl tell ioihe gulter.which tbs 
deponent ajiprehendril would have taken liim 
up to the kui«i that it Has a very natty 



!■ nkiinrt Finharcawd Air. Lyon of gutter; and that lit utr tbe punel uiatoot 



1S9] 



? GEORGE II. 



7'rial qfJamet Cartiegie, 



«iriIieffiiUer, ■«(! immeiliately drBwhiaiword, | 
by vbicli lime BridKeioti tris walking' off 
towards my lord Slralbmora and Dthen, who 
were ikiDdTng u|ii)ii the atrecl ftbnul ttie diMmce 
of tiie length of lhi« Toom fivm the forefaid i 

? utter : and drponed, That be fullowed at\er I 
inharen immixtiBlely, after ataudintr a little i 
while with bin comrades; and llint before the 
tfeiMBeat came up to the place wbere my lord 
SUBthmoreaml the other genllemni were stand- 
ing', my lord Stnthmore h^id tkllen upon the 
streeL Am) tbe de)>onant being nslced, how 
■oon that ba|^ned f De|>ODed, That it was 
in ■ moment ; and that wbco the deponent 
«ame up as atbresaid, he raw Mr. Thomaa I.yon 
and FiohaTcn eoeaged, and making panes at 
each other with their rirairn awotds ; which the 
deponent explainol to be odIv a clashing with 
their awords ; and that Mr, Thomas Ijyon did 
1 twist the sword out of Finbaren'a 



C* 



pattt. And this was tlie truth as he abould 
snswei In Giid. Anorew Douaua. 

And. Fletcueb. 

John Fefricr,mideBter ID Forrar, solemnly 
nrom, purged, examined and interrogate, de- 



Ened, That at the time and place hbeRed, the 
pcnent baTtnc occasioD to go to water bia 
master'! horse, ne mw Bridgetou and the peU' 



Li they came out from tbe lady Auctiter- 
nouse's tod^ng, about the briilee^une near 
the shambles, and there heard Bridgeton say 
to the jiaunel. You mnst gi*e me an answer to 
my queaiion, which tlieileponent beard was. If 
the pannel would give his iJaugliter to the lord 
Rowhill? And upon the psnuel'a saying. Ho ; 
Briil^ton asked nim, If he would drink a bot' 
tie ot wine, and if he would drink the king's 
health ? And u]Kin the panuel'a refusing to do 
either, the deponent saw Bridgeton take hold cf 
the pannel by tlie breast, and Tioleotly push him 
into the kennel; and heard Bridgeton at the same 
lime, saj. Go, and In damned, and your king 
George, whom you love so well. And thereatter 
Bridtieton walked towards mv lord Brrallmiore, 
Hr. Thomas LyoD, and my lonl llotebill, who 
were standing upon the street at aonie little 
distance ; and that Finhsren was helprd out of 
the gutter by a footman of my lord Stratb- 
toore's: and that upon the pannel's getting 
unon the streets again, he immediately drew 
his sword, and ran up the street afler Bridge- 
ton ; and before Bridgeton had come the length 
of the place where the lord Stratiimore and 
otiiers were standing, he looked over his shoul- 
der, and seeing FiribaTeii following him in 
manner abore mentioned, be run up to my lord 
Strathmore, who, and the rest of the company, 
had still their backs tiimeil to the place from 
whence Fiohaf en and Bridgeton were coming : 
•nd that Bridgeton, upon his coming up to 
6tralhmoTe,laid hold upon my ktid Siralhronre's 
•word, and eadeafoiired lo pull it onl ; upon 
wUeh my lord Sintliiiiore latniug aboul pushed 



Bridgeton off, and in tbe mean time FlohaTa 
made a pnsh with his swoni at Brii%pton, aw 
at that instant he obaerred my lord ^atbmon 
pnshing Bridgeton aside, and make a step to 
wards Finha*en ; and obserred at aame IIm 
Finhaven, going on with his piMh, to Msgm 
liirwarO with the thrust upon my lord HtrSm 
more ; and thereafter thu company west a] 
through other, sn that the deponent could iM 
see where the thrust landed : and »ery sooi 
thereafter the deponent saw Mr. Thomas I^ol 
with bis sword ra' Finharen's sword out of U 
hand, which lighted at a good distance upa 
the street: u|)On which FinbaTcn runoff, Mif 
gering, towards the lady Auclilerbouse's ittf- 
iug, and bad almost fallen upon the atreel |^ 
lbr« hegot inattiiegate ; and much abontthl 
aame time the deponent aaw the earl of Stntb< 
more fall down uiion the street, and al\erinidi 
carried off, and that Thomas Adam and JuM 
Binnie wet« (ho first that came to his assirt 
ance. Deponed, That the kenoet was dasf 
and dirty, and that the panuel itas deep in i^ 
but not treely covered : that when he»Tosa,Kl 
face wBsalmost as Uack as his black coat ; ui 
that while tbes* things past, the deponent wM 
riding upon the side of the street, betwixt Ikl 
gutter and the place where the earl of Stralb< 
more and othera were standing ; and upon sM> 
ing the b^iuuiog of this accident, he stoppri 
his horses little, till ha saw naalmve-menliuDci 
Couio scientiie palet. And this was the truth M 
he should answer to God. John FEiiaitR. 
And. Fleti^ueb. 
David Barclay, lawful son to Dntid Bardif) 
brewer in Forfar, solemnly sworn, purged, ^ 
amincd and interrogate. Deponed, That attbl 
time and place libelled he saw Bridgeton put! 
the pannel into a gutter, oud saw a serraal 
raise bim outof the gutter : and when ihn pal- 
nrlgotlo the street, he saw him draw his sword, 
and go towards the rest of lljc company, an4 
Bridgeton was beyond the earl of Stmthmor^ 
his brother and lord Rosehill, who were inter- 
lerpoBed belwiiLt llie jiannel anit BridgeUa, 
and did not see the panne] push with llM 
sword, and saw a little after my lord Strait 
more fall upon the street ; aod immedialdj 
; aller that saw Mr. Thomas Lyon, with I 
j naked aword, beat the psnnel's sword out el 
his hand, and the psunel immediately nil 
toward the lady Auchlerliouse's house, ad 
got in at the dour. And deponed. That wbcl 
Bridgeton thrust the pannel into the gutter, iIm 
servant who lillud him up, aaid to Brid|;eton, n 
some other serrant standing by, that be was nn- 
civil, though lie was a gentleman : and iha' 
what tbe deponent saw ami heard, as aforesaid 
was betwixt eight and nine o'cloek of the eveO' 
iug of the day tbresaid. Canto itienlitr palet 
And this wa* the truth as he should answer ll 
God. Di^ia BtocLnr. 

y/t, Caldkkwood, 



Eluahtth fimnte, anoine to Andrew Gray 
bazter in Dnwlae, pelemnly sworn, pnrg<4 
(xiuuncd ui iBleirroyale, daposvd, Tfauilii 



W] Jbrae Murder of ihtEnrt of Strathmort. A-D. 1788. [M« 

tiD uiile, tad my lonl Stntbmora bmd ulTanccd 
liifciliiHliii a pnib to the panDfll, wFicreby n atep or hftlfa alep toward Fiohaven ; and tben 
kdia ibc gutter, tnd irairoiaad out of it by tbey went all id kurowdtbroiigh other, and b« 
ijkd not know what wa* duiofc amoDgtt them, 
hit did H« hU mailer's snord ilruck out of bw 



teiod place lifelled, ihe nvr John Lyon of 
• * iM five a pnib to the panDfll, whereby 
■ IM gutter, and iraa roiaed out of it by 
it Iwi flUsifafflore'i wnaat ; and when he 

Ctt Ifec ttrwi, law him drav bU anorJ, aod 
ikJB Dttar BD oath, but did DOl know what 
Atawkware: and then the deponent turned 
kthdl,iad did not ate FiDha*eti puih with 
: Ac twmL Catua Ntmli« pattt. And tliii 
I TM the Inlh aa ahe ahould anawei to God : 
'le could Dotwrile. 

W. CtLDoatooo. 

a JbrJt)p, Mnaut )o Mr. Robert Nairn, 

'■fcraiaa to Nairn of Drurokilbo, 

I MaalT *WOn>, purged, examined, and iuter- 
NMt^taoBed, that at the time and place li- 
I kb, be dU aee WiUiam Mu^lish, my lord 
I IMwK^ aeiTast, take FinbaTen the pannel 
! arfdw piUer,iTbeic the deponent fawbim 

tl ad did aee FinhaTen dr«w hia aword after 
iBont: aaddidbearoneoftheKentiemeD, 
■iii|in tbe place where my lord si rath more 
^Hmded, call out to Fin1iB*en, Stand off, 
#}Hda1illleBpaeetfaereaflerhesaw the dc- 
■Mdaait of Strathmoretakennp, Coniii ici- 
atgfaltt. And tilie ia tbe truth ai bcBbouid 
MiB IB God ; and deponed he could not 
wAn W*. Pmssle. 

Jma Barrie, lerranl to Jamea Carnegie of 
^ImB, aolennly sworn, pui^;ed, examined, 
M istampte, deponed, That at klie time and 
|lMe kkeUed, the depnnent «(m hoUling hia 
■Mar'a borara upon ihc slrrrls of Fcrfar, ntar 
kihekdj Anrhierbousit's tud^ng: tliat he 
Wacea weaaid earl ofStratbiuore, and other 
cajaD]' witli him, ki aluiiir ilte Klrcet froiii 
<fecuai iDdgioir, knil Ijis niiutcrand llrjitfjclua 
I Jkfi i It a little distnucc ; beard tbcin coii- 
■wnaf together, and iboiiKiit tliat Itrid^eliOi 
MiiiJ ■imjI.c angry at Wii ma«lcr, a.tid dv- 
■•Miliat he ahiiuld give him au answer; 
Hmn will liear what liiv iiinklcr said, c.TcepI 
Am wwdi. That be inteiidnl lo be of ihat re- 
alitioo ttill : whcrriijion Ktidgcioo with his 
tn hand*, puiheil his mnslcr into the giiUt.'r, 
i> ibc nme lime exprL-ntng himself. Go liv 
hma'i, and lt( thai man take liitii up tor whom 
kehadu great a farimr. And (he dqwiii-iit 
■Mg hit iDMter lytntr in the gutler, quit liii 
Wk*, and came li) relici* him, but luund tlint 
■j k(J Ijtrathmorc's scrranl had lidpcd liiin 
MnWfure he cjmc.and then be did sec his 
■Wtr draw Km anord, and go nrrlly fast fur- 
inl. flaggcring, and Esying, riiis cannot bb 
Mend; ibcii hiimaoteruimeup tulhecom- 

Cj. and saw bim make a puili at I)riil[;eton ', 
tLar klurr hi« muter came u]i to llicm, he 
M we Brldtri'*'!" malic an allcmpt tn draw my 
hrilkiathiDorc's iirord ; und as Ilridgcton tvad 
9t^ lowatti ni_* lord .Siraihmore, be did six 
Mjelnn louk "Tcr hitiibnulilcr lo Finliafcn, 
MLnklatitbe had hecnlautjhinK. OWrnd, 
hi vIwd his master madi' tlie pu^li, nii iH't^ire- 
kaaiucd, be Mcmcd a* if lie had beun filling, 
■(■w bim cloae upon lord Stralbm<>ie; bui 
Uh lliii^ my iapl ittialhuiore kud put lliiJ^- 



band by another swoid, and then did aee hia 
— 'nr go down ta hii aister'a lodging. De- 
yoned, that aj hia master was thrown upon the 
back iu tbe gutter, and was covered near oref 
the belly, and saw hia face all bespattered witk 
Jirt, and aaw the mire run out of fail boot- tops 
uabe went up theslreet ; and deponed hii mas- 
ter at that time was very drunk. Being inter- 
rogate further, deponed, Tliat hehasfreiioently 
feet) his master drink, and propose the deceaaed 
earl ofStralbmore's health at his table, and ihia 
A short time before tbe unlacky accident liap- 
pene«I. Deponed, that about a manlh before, 
the [ate earl and hia master was tocher at 
Bnmside't burial, and heard the Earl iDvite his 
inasIertohiBiiouBe,Bnd beard bim aniwer, That 
lie intended ihot very soon. Deponed, that bis 
master rode with pistols that day, but deponed 
there was not so much as a stone in tbem* 
Deponed, that ai^tit or ten days before tbie un- 
tnctcy accident, his master bid the deponent g* 
m the taylor, and get his clothes ready, for be 
intended aa soon aa he got bia chaiaa borne, to 
go with his lady and make a Tiail to my lord 
tttratbmore at Glaromis. Cavia leienti* patet. 
And this is tbe truth at lie ahould answer t» 
Ood. JiMEs Buuua. 

W*. Pbikols. 
Eluahth Vilant, lerraDl to Margaret Car- 
D^c, relict of tlie deceost Air. Patrick Lyon, 
of AuchlerhouEe, solemnly' sworn, purged, exa- 
mintil and interrogate, (le|H)iif J, Thai, on the 
<>ili I.!' Slay last, slie did sec my lord Slrath- 
murc Btid t iiihaven in (be lady Auclilerhouse'c 
lion^'e, anil did see nor hear iioihing pasa be- 
tween them but what was kind and civil ; and 
slie wa6 much of the time in tlio mom before 
I)rid''eton came iu : but at\er he came in, abe 
M-ns but ciimiug and going; and when mj 
U-Iy railed for a glitsitof bruiidy, Iho de|)onent 
brou[;ht it in, ami luv lady set it by, uid saw 
nobody drink il, and I'hst mv lady tuM in tbe 
cnmpBny, That Urid|(cton liad taki^n her by 
ivriat, and that Khc bnd not been so ill usM 
ly man, and complained uf pain. And 

Ctiuia irientia pattt. 
she shotild answer !• 



de[Kined, that that allevi 



Al>. CuCKDi;il!IE. 

Isaifl Meik, servant to the before-named 
and designee! jtlnii^aret Cnrnetlie, anlcinnly 
sworn, mirged.examiucd and inlerrogale, de- 
poned, Tliat in thi! evciiiui; on llie 9th of Miij 
last, Finbavcn came up lo llie lady Auchlcr- 
bouse's house, ami ibe donr being shut after 
bim, she came ii|i srtvr into tbe said hou*e : 
and she turning iiIhiuI upon sonic |)<>u pic knock' 
ingat the door, and opniin:; the B:ime, there 
CBmc in tiro nr three luthU'inen or (;eutlemrii 
«iili drpwu sHords ; and I'inbaTen tieiug Ibta 



147J 2 GEORGE II. Trial of James Carnegie, 

till tbeir bodies were close together. Deponed, but she said n6, for it did appear to l 

That Bridgeton is a good deal taller than my not want it, fur be was then ?ery dri 

lord Strathmorewas: and that my lord Stratli- that Bridgeton took her the deponeo 

more wore a fair wig, and Brid^eton wore a wrist, and squeezed it bard, and said 

black one usually. Causa scientue valet. And be no difficulty to break it ; and di 

ibis is truth as he shoald answer to God. same time, Bridgeton took Finharei 

Tug. Cbichton. arm, and struck bis band down to ' 

And. Fletcher. and said, Will ye not agree to gire one 

T^ r I Twr jj i L*- ^rkj daughters to Itosehill ? And Bridsfeto 

Dr. John Wcddcrburn, physicuin m Dundee. ^^"^ ,f ,,^ ^^ ^ ^J-^, j 

solemnly sworn, purcBd, examined and mterro- refuiedhimoneofhisdaughte;*,hewc 

gate, depon^, T^atTie wsb ca"ed to wait on ^- ^j ^^^ thatshooE his hand < 

the earl of Strathmore, when he reoeired the a«*i *i««rt«oj .h^ i^.^... l..^., ^^^ u^, 

wound upon the 9tb of Ma^ last; and the de- broUierrtn^q^ 

ppnent saw him uert morniiy «riy ; w^^^^ And this Is the truth as she si 

▼lewmg the wound, it appeared to the depo- ^^^^ ^^ ^^ Maroaret Cai 

nent to have been given by a three-cornered ' *•> r>/^^.rnrtB^ 

sword, which had entered about three inches ^'^* i^ocKBURN 

above the navel, and went out in the back on Dr. John Kinloch^ nhysician in Du 

tb^ left-side, some inches from the back-bone, lemnly sworn, purgeo, examined am 

and about two inches lower than where it had ffate, utftipra,aeponed,Tbatontbe9l 

entered ; and the wound was to the deponent's last, after Lours's daughter's burial, 

apprehension mortal ; and accordingly the earl nent was in clerk Dicluon's house in 1 

of Strathmore died of that wound upon Saturday a room with the pannel, who asked t 

night, about two davs after he had received it ; nent, if he would go into another rooi 

and the deponent thereafter saw the defunct the earl of Strathmore was, to see his I 

•pened, whereby it appeared, that the weapon and accordingly they went into the ro€ 

had passed through the caul, the gut colon, and the Earl was, and stayed there about 

the plexus mesentericus. And deponed, that and drunk several bottles of wine toget 

the defunct told him, that he bad an impres- during that time he saw nothing bi 

sion, that the person who gave him the wound, civilities in tlie company, without the 

had, by applying his belly to the pomel of the pearanoe of quarrels. Causa scient 

tword, posned it forwlird upon him. Deponed, And this is the truth as he should < 

thatBndgeton is of a mncn taller stature, than God. John Kinl 

my lord Strathmore if as ; and that my lord W. Caldei 

^thmore usually wore a fair wig, and David Denune, sadler, in Canoni 

Bridgeton a black one. Cania scientuc patet, lemnly sworn, purged, examined am 

And this is the truth as he should answer to jjate, ut supra, deponed. That, in U 

God. John ^ edderburne. February, or beginning of March lasi 

And. Fletcher. ceased Charles earl of Strathmore, j 

Dr. CharUs FolheringAame, physician in *»aven the pannel, with another ire 

Dundee, solemnly sworn, pui^ged, examined '^^^o™ ^l>« deponent did not know, car 

and intenrugated, deponed conform to Thomas deponent's house, called for a dram, \ 

Criditon, the former witness, tn omnibus, deponent served them with himself: 

Causa scUnt lit patet. And this is the truth as Eari first drunk to Finhaven and his fai 

be should answer to God. **>en Finhaven drunk the eari of Stni 

Cha. Fotheriwguamb. ^^i>^ and his family's; and at sev< 

Ad. Cockburne. times, when the Eari was not present 

^ , - . «^ , « ponent saw and beard Finhaven drin 

Follows the Witneswss for the Pannel's Ex- gaid eari of Slmthmore's health. ] 

culpation : h^ lias hail occasion often to see Finhi 

Margaret Catnegie, lady Auchterbouse, so- ^ "» company with him. and observe 

lemnly sworn, purged, examined and interro^ ^ay« to be of a good temper, and no 

gate, ut supra, deponed, That on the afternoon «*'««>«» to quarrels. Causa saentta pat 

Sf the 9Ui of May last, the earl of StraUimore, tbis is the truth as be should answt^r t 

Bridgeton, and rinhaven, were in the depo- «t*^*? ^ 

Dent's bouse ; she observed no manner of dif- ^* ^-ald 

lierencc betwixt the earl of Strathmore and Fin- David Ogihie, son to sir John Ogil< 

haven; and that the pannel and the other com- verquharnty, solemnly sworn, piir(> 

pany drunk my lady Strathmore's health twice mined and interrogate, ut supra, depot 

over, and the pannel tossed up the glass ; be has bad frequent occasions uf beini 

during that time Bridgeton was usin^ roii|fh ! pany with the pannel, and has oft- tin 

expretsioos to the pannel» and was taking him ! aim testify 'his respect and regard foi 
by the breast, and verv rude to biro ; and that ; earl of Strathmore, by naming and dr 

viieD a|rlassof brandy was brought, she de- i his heahh; and particulariy did bear hii 

•ired Bndgeton to take a dram» and be desuned | bis own house; in the month of Marcl 

ll fboiild be giYCD to FmhafcOt ber hraUicr ; ■ list, when the deponent ^ae visiuog h 



firtiie Murder nftht Earl of Sirathnure. 

■r,<Jkcw him drink botb to the EifI'b 
miik mmtco'a. Deponed, Thai for 
ktiirfear ynra pAxt, he hui beeiiiu- 
}j HMuina with tho psnurl, tind ob- 
Munn to be of a goei am) peact)- 
fff;tMlbechar«cterLea1wayi heirtl 
ti Um couDliy, »u, That he was 
M^leand good temper, and uo waja 
■t. Caiua Kienlmpattt. Andthii 
rt n be •faould aiuwer to God. 

David Ooilvie. 

Dl. EUKIKB. 



A. D. 17S8. [!.W 

aqd Mine liaen* of bu «ini to put on, at 
leattthe coat was hi* own, vrhieb he helped to 
pnt 00 him, and to wuh aod clean hit face.' 
The deponent tpnke to him aaiiably to the oc- 
casion of his villi, both in mperi tobndrunlc- 
enoeu, *nd what wan tiubtiihed atHroad lie iiad 
enminiUed upon the earl of Strathmore, by 
giviafK him a wouad ; upon heariniC whereof, 
and tbe depooeot further iaviny, Tliat he iiail 
to bisgreataatiaftctionbetrdtbe earl of Strath- 
more praj to God lo fo^ive fainri : upon lh« 
the pannS fetl into tbo greateat diaorder, toH- 



l> Jfarfj'ne, mbisler of the^pd at 
mnly Kivorn, pur^d, ezmnined and 
', at aipra, depooed, That he the 
«vii)(! had (nme affair tndo with the 
«rl of Strathmore, as one of the 
ibla the deponent's jiariiih, on which 
I dcpODCDt went lo trail of hU tord- 
boiiM of Glaminit, hut had the mia- 
aiaa him ; and upon his return, 
ud of the pannri, ami spnke li> him 
■, Ictlins bim how be had missed my , 
deaired that the jiannel would fall 
npedieni to bring either his lard- I 
nc from bim, lo meet with ihe rest 
ora. Upou which the pannel ad- 
leponeDt once more lo wait of bis 
Biiuiiniia; and t<)r hisrecommeoda- 
itrodoctioD, be would write a letter 
I. and acquunt him in it, that he 
«rer. Aciwrdingiy the pannel did 
Her to the Earl to the foresaid pur- 
I ht! delifercd lo the deponenl ; and 
ibe deponent did igaia t(a to Glam- 
lliat tune also had the misfortune to 
irdibip; upon which he ihe depo- 
tfd the letter to one Mr. Greenhill, 
servant ; and the meeting of the 
<ldin|T upon tbe Wednei^dny there- 
said Mr. Greenhill came irom his 
ind ntleniled Ihe meelinfr : and de- 
tt the writing of the foresaid lutler, 
rin^ of it, was about the end of 
hc;;inDiD^ of April last. Deponed, 
Irpooent has tor these ihree years 
ntiinalely acquaint with the pannel ; 
: the wbule CDuise of his acqiiainl- 
bserTed him always to be regular in 
d of a [leaceahlc temper and disposi- 
h i<i Ihd character he bears in the 
Cuuu icicuftf palel. And Ibis is 
a be atioald answer to God. 

John Martine. 

D*. Ekskinl. 



«f MaztLtll, ^ , 

solemnly sworn, purgjcd, examined 
tgate, ut tupra, deponed, Thai «oon 
sriofStralbmore received his wound, 
rat waited of bim, aod from him be 
iIm prison and visited the pannel, 
fiMwl in (freat disorder, and under 
— iuna of drunkenness, his cluaihi 
', and hi) face 



...jle, and hanging his head downwards, cried 
out, Good God I liave 1 woimded the earl of 
Strathmore, a person for nhuiD I bad ^at 
kindness, and against whom I had no deai^i 7 
CoHfa tdenl'ut patet. Aud this ti ibe tnilh ■• 
be should answer to God. 

Ja. HaxwuxL. 

Da. Ebskikb. 
The Lords Jnstice Clerk and Coram isaioaerB 
of Justiciaiy, ordaioed the Asuseto iodnae in- 
stantly, and return their Verdict, in Ibia plsoe, 
against tO' morrow at twelve o'clock, aod the 
baill fifteen to be then present, «ach under tbtt 
pain of law, and tbe pannel to ha carried back 
to prison. 

CoBU JusTicuBu, 8. D. N. Be^ lenla id 
novo Sessioiua Domo Burgi do Edin- 
burgh, tertio Die Hessis Augnsti, Uilto- 
simoseptingenie^mo rigeaimo oetaro, per 
honoiabiles Viros Adainum Coddiunieda 
Urmistuun, Justiciarium Clericum ; Do- 
minum Gulielroum Calderwood de Pol- 
touQ, Magistrum Davidem Erskine <!« 
Dun, Dominum Gualierum PrioKle de 
Newhall, et Alagistrum Andreani FTctcher 
de MiltouD, CnmmiiisiunBrias Justiciaria 
diet. 8. D. N. Regis. 

Curia legitime affirinula. 

Jamet Carnegie, of Finhaven, pannel, 

Indicted and accused, as in all tbe former 
sederuuts. 

The tbregoiog peruins who passeil upon the 
Assize of the abive nannel, returned their Ver- 
dict in presence of the said lords, and whereof' 
the tenor follows: 

Edinburgh, Ihe Bid of' Auguit, 1798. 

The shore Assize haling inclosed, did chooH 
sir Kniiert Dickson uf Inveresk l» be their 
of the gospel chanccllur, and George Halibiirtoo of Fordel 
' lobe their clerk; Ami baring considered lb* 
in'liclmeiit pursurd at the inMauce nf Soranna, 
cuunteksot Strathmore, anil Mr. Jameg Lyon, 
brolher-german and iienrest of kin l<i the de- 
ceased Charled earl of Strathmore, with con- 
courst^, and at thu inttatire of Duncan Forbes, 
FM). his majesty's ailrocote, for his highnnB*a 
' ilerest, agaiutt Jaui«i Carnegie of FiuhaveR, 



vith dirt; the deponent helped him pannel; the lords juslice-clerk and 



r hia ckitbes, aud seat for a 



siuneti of juMtdary tbcir iuleriocutor tbtr*- 



151] 



2 GEORGE II. 



upon, vith the wHnetMs' depontioni aiUncfd 
twT prOfin^ thereof; with tbe witneMM' dcpo- 
Biljocu Mliluced for the pannel'i exculpation : 
Tbey, bv plurality of roicei, fiad tbe pannel 
Not Guilty. Id witoeM whereof ttiir pmenta 
are subacrihed by oor naiil chancellor and okrk, 
iu our namea, place, day, munlb anil year uf 
God above- written. 

" Ro. nirKsiN, Chancellnr. 
'• (JEO. ll.AUDiiBTON, Clerk." 
' TbeLordaJualice-ClerkandCommiwioners 
of Juaddtry, faaTiD^ cousidered the foregoing 
Verdict of Amize relnrned against Jsmes Car- 
upgje, of Finhareo, pannel: They a&suilzied, 
and hereby HEioilzie nim simpliciter, and dis- 
Diiued, and hereby dismiis him from itie bar. 
Ad, Cockbubne. 

AaSTBACT OF SOM£ AcTt OF PaRLIAMBNT' 

IN THB VK«Y Words op the Statutes 

TRSMSELVBS, REFKKRSD TO IN THB 
rOREGOING AruUMXHTS. 

Jaim* 1, pari. 3, act 51, intitled, <' Of 
fbrethonirhl FetoBy and chaud metla ;" ala- 
tutec, " That aa loon a* any camplaJDt ii made 
to Justices, ■heriffs, baillies. Sec. they iliall en- 
quire diligently (i.e.) without onie laTuur, gif 
Uiadeed waa done upon foretbonglit fetony, 
or throw aiidden chaud mella : and 0{ it be 
fomd ftirethotight felooy— the life and goods 
oftbetreipaaaerlobein thekiug's will:— and 
gif the treipaa* be dime of 8u<ldeu efiaud mella, 
ibe parly ikaitbed shall follow, and the party 
IranagreiMir defend, stler tbe coune of the old 
lawa of the realm." 

ilamcE 1,-pnrl. 6, act 05, intitled, "The 
Uanslayer luld be punued until be be put furtb 
of the Realni, or brought again to the PJace of 
theHlauchter;" ((he act appointing (he ine- 
Ihod of pursuit^ manslayers) statutes, " That 
quhaireTer he hspjienia to be takin, that achi- 
reSe, aluart, or bailie of the regality, sail send 
bim to the schireSe of (he nixt schirefrdoin, the 
qnbilk sail receire him, und send him (0 the 
Dint suhirefTc, and swutimrth from schirefTe to 
Mhireife, quhill be be put to the achirefle of the 
pobire where the deede was done, and (here 
■all tbe luw be miiiistred (o (be party ; and git 
it be fbre(hDUght lelouy, he sail die iherefnre." 

Jumes 1, pari. G, act 05, iuliiled, « Of In- 
quisition of forethought Felony lo lie taken by 
an Awice;"i(statutea, "That (he officiate (i.e. 
ihejurlKi-s ordinary) sliali give them tlie know- 
ledf^ ul an ashize, wlietlivr it be li]re( bought 
ftlony, or sildJcnly duuc: and gif i( be sud- 
denly dune, deruain iliem as (he law (read of 
belure;— and gif it he forethought felony, — 
iteuiaiD Ihein as law will." 

Jamea 3, pari. 5, act 35, intitled, " Of 
Slauchler, or foretJiought Felony, of Sod- 
dutje, and Flying to Girili." Item, " Because 
of tbe eschewing of great ilaueliter quhich Inm 
baw tigtat caiumauDRiaMXtt the kia^'a Ueg**! 



Trial of JmtKM Carnegie, [ISf 

DOweof late, baith of foretho light felony, mat 
of auddantie : and hecausa monie peraoos co^ 
Riit tUuch(er upon foretbeoght felaoy, in tmota' 
they sail lie deiiPDded throw the inamunilw af 
(he halie kirk and girth, and paMia and rrrmsiaii 
insanctiiaripa; it u tbonght expedient ia tbi» 
prBKul psrliameot tor (he stanching of ibo 
Slid slouchten in time coming, quhaiterv 
slaiicbter is committed on forethought felenf,' 
and the commiiter of the said sUuchter po^w 
und puUii kim in girth, for the safiie of bii 
|>erson, the schireSe sail come to the ordinoTi 
III places ^ubair he lie* under hia jiiriadidiia, 
and in places exempt to the lords maintentf 
the girth, and let them wit, that sick a ■■■ 
has coniinitled sick a crime, on fbrelhoi|bt 
felony, "lanijuam insidiutor etpcrindustriim," 
for qubilk the law grants nut, nor learei oat 
sick persona In joyis the immunities of tha 
kirk. An.l the schirafle sail require tbe or- 
dinar to let a knowledge be taken be an SMua 
on 15 dayi, quhidder it be forethought felony, 
or not : anrl if it be tbundeo foretliuught felony, 
to be puniKhfd after the king's laws : and ifit 
be fuundej) suddantie, to be restorid agais Ml 
the freedome and imniuaiiy of balie kirkai^ 

James 4, pari. S, act 18, intitled, " AdmI 
Manslayeritakeu or fugitive ;"slatuiea,"'lW 
where any happens to he slain within (be reah%'' 
tbe mantlayer shall be puraued (in a certlW 
manner), and wherever be happena to be over^' 
lane, that tbe ichirelle tall incontinent ant 
him Iu (he nixl ichireiTe, and to forth, qoUl 
he be put to tbe ichirelfe of the scfaire quMM 
the deed waa done ; and (here sail justice hi 
iiicoD(inent dune. And gif it be furetbonglt 
felony, to die therefore." 

Jamea 5, pari. 4, act 23, intitled, ■' no 
Haisters of the Gii1h suld make depute*, qoko 
suld deliver Malefacture*, thai may not biwb 
(he priviledgc thertuf ;" ststiiies, " That tlMy 
should be huldrn in all time comeing, to da* 
liver all committera of sUuchlir upon foro> 
tliaught felony, that (lira to trjnb, and nlbcM 
Iresiiai>seni that breaks the same, and may oM 
biuik tbe privileilge thereof, conform to ibl 
. common law sud (be act of parliament ma^ 
thereupon of before, to the king's official^ 
atktiod and desireaod tliero tounderlythelaw.** 
Follow* the intire act of Charles 3, pari. 1, 
I chap. 23, intitled, " Conreming the Wt- 

i vetal Degreea of caiual Homicide." 

" Our sovereign lord, nitli advice and con- 
i sentof ilie estates of this pres'-ut parliament, 
I for reniuviug uf all quektinn and doubt that inay 
' arise heraatter in criminal pitrsuila for slaogh- 
\ ter ; Btatulei and ordains, Tliot the rasca i( 

I homicide after liillowiDg, via. casual 1 iiifc. 

liomicide in lawful defence, and iiominido 
conmiltad upon Ihievet and robbers bra>kia|f 

bouaaa in the night ; or in case of 1 in J 

(be liffie of maatprtul doficdation, or in t ho p 



orimea, w of nek who 



dedared rebela br coaiBl 
rho asaiat owl Miad DM 



m 



Cote of Edmund Curil. 



A. D. 1727. 



[154 



■Wtacrf nuftcrful depredators by armi, and 
fe| firce 0|ipoae ibe piinuit and appreheadio^ 
tfihiB, wluch abalt happen to tali out in time 
mmiai^t aor anv of them, shall not be punished 
hf daili ; and tbat uotwithstandinfl^ of any Uws 
« arts of parliament, or any practie made 
himfais^ or observed in punishing of slaugh- 
tv: h«thil the BWDslajer, in any of the cases 
asaoilaied from any criminal pur- 
' aninst him for his life, for the 
r, before any jud|fe criminal with- 



JiiifHsginna, Providing always, That in 
AfCHtsf hooaicide casual, and of homicide 
lotwithstanding that the slayer is 



by this act free from capital pmsishment ; yet 
it shall be leisum to the criminal judge, with 
advice of the council, to fine in his means, 
to the use of the dehinct*s wife and baimf, or 
nearest of kin, or to imprison him. And hb 
majesty, with advice foresaid declares, that all 
decisions given coiiibrm to this act, since the 
13th of February, 1649 years, shall be as suffi- 
cient to secure all parties interested, as if thia 
present act had lieen of that date : and thataH 
cases to be deciiled by any judges of this king- 
dom, in relation to casual homicide in defence^ 
committed at any time heretofore, shall be de- 
cided as is above expressed." 



470. The Case of Ed if und Curll,* Bookseller, in the KingVBench, 
for publishing a Libel : 1 George II. a. d. 17^7. 



Mich. Term. 1 Geo. 3. 



L's Rex v. Eomuno Curll. f 

Jn6BllATION exhibited by the AttomPT 
against the Defendant, Edmund Curll, 
Itie '* ezistens homo iniquns et scele- 
M oeqiiiter machinans et intendens bonus 
■Mi snfaditonim hujus regni corrumperc et 
dMsl iMi|nitiani inducere, quendam tnrpem, 
bpMi et obscoeoum libellnni, intitulat Venus 
is a Ckyster, or. The Nun in her Smock, im- 
■r^niter impressit ct publicavit, ac impri- 
■t poUjcari causaTit," (sett I u^ forth tlie 
I lewd uassageft) **in malum exem- 
,** &c. atko of this the defendant was found 

Trinity Torm last, it was moved in 
ivfjodgineothy Mr. Marsh, that huwever 
' ml may lie punishable fui* this in the 
Conrt as an offence *' contra honos 
vet it cannot be a libel for which he is 
in the Tcmi)oral Court. Libeliu^ 
I a diminutiTe of the won! liber ^ and it is /i- 
Je/Ztfi from its bein<7 a book, and not from the 
■ttirrofits contents, in the Case De Libel- 
b famous, my lord Coke says, that it must be 
l^auHC the iiublic, or some pnvatc person, to be 
a bbel, ami 1 do not remember ever to have 
heud this opinion contradioted. Whatever 
itads to corrupt the morals of the people, ousfht 
ti* be censured in the Spiritual Court, to which 
properly all such causes belong. What their 
pcuerediDgs are I am a stranjjrer to : But for 
■e u insufficient to say, I do not find any case, 
■herein they were ever prohibited in such a 
uDse. In the reign of king Charles 2, there 

* Probably the iiotorions bookxeMcr. As to 
«b<Mn,see the Duaciad. See, al^, vol. 1>, 

t Nlraiige*s Reports, vol, Q, p. 7^3. See 1 
IMi. t9. Nee Annett's Case, 1 niackst. 395, 
%a^ Ecclesiastical Li*.v, tii. Prolaiiencss, 
flialogiw 3, p. 113. See, a1<*^». Kast'tf 
ef the Crown, c. 1, § I, and WUkes^s 
fm pu bl ishi p g the Kssay un Womuu. 



was a filthy run of obscene writings, for which 
we meet with no prosecution in tiie Temporal 
Courts ; and since these were things not fit to 
go unpunished, it is to be supposed that my lords 
the bishops animadverted upon them in theii; 
courts. In the case of the Queen o. R«ul, 
6 Ann. B. R. there was an information for a 
liltel in writini; an obscene book, called. The 
Fifteen Pluuues of a Maidenhead ; and alW 
conviction, it was moved in arrest of judgment, 
rhat this v«as ni»t punishabli: in the Temporal 
Co'Tts; and (he opinion of shief justice Holt 
was so striiiig w'\i\\ the oltjection, tliat the pro- 
secutor never tiiiiught fit to stir it again. 

Attotnfjf General coutra. I do not observe it 
is pretemlcil ihere is any other way of punibhing 
the (i«:fen(iaiii : for if the S|)iritual Court had 
done It, instances miglit be given ; and it is no 
argument to say, we meet with no prohibitions : 
such a way of argument- would constnie ihem 
into all sorts of jiirisijictions. What I insist 
u|M>n is, that this is an offence at common law, 
as it tends to corrupt the morals of the king's 
subjects, and is against the peace of the king. 
Peace includes {2;ood onler and govern tneot, 
and that peace may be broken in many in- 
stances without an actual force. 1. If it be 
an act against the coiKtitution or civil govern* 
mem. 2. If it be against religion. And, 3. 
If against morality. 

1. Under the H'stliead, fall all the cases of 
seditious words or uriiiiigs, 2 Roll. Abr. pi. S ; 
Vent. *61\\Z Kelile ^*4li and the Case of the 
Quern v. Bedford, Mich. \1 Ann. whose trea- 
tise of Hereditary Ri^ht was held to be a libel, 
though it contained no reflection upon any part 
of the government. 

2. It is a libel, if it reflects upon religion,, 
that great basis of civil government and liberty ; 
and it may be both a s|)iritual and temporal of- 
fence, Cro. Jac. 4'21 ; 2 Koll. Abr. 78, pi. 2 ; 
1 Venl. 293. 3 Keble (507, 021. In Tremayne's 
Entries, ri26. there is v. sentence to have a 
priper fixed upon the defendant's head, iiittmat- 
in;^, tIi:U he had uiiered blasplieraous words, 
tending to the subversion of government. 



135J 



1 GEORGE 11. 



There U one Hall a 






Pucb. 10 Adu. UeKini s. Clcndon, tberc 
special rei'Jict on a libel abuul the Trinity, ind 
it wu Dot made a doiihl of in that case. 

S> As to tnonUilj. Ueatroying the peace nf 
the gOTemiuent ; Tur j^ernracDt ii du more 
than public order, wbich is muulil]'. My 
lordchierjuiticeHolt uiieil lossy, Christianity 
if pan dI' the lair: Andnbynol morality too? 
I do not iDsiit tbat ererj iinioDral act ii ia- 
tlictaUe, ancb as telliog a lie, or Ibe like : Bat 
if ilisdeatriicliveof morality in eeoenl; if it 
4oet, M may, affect all tbeltinga sabjectf, it 
then is an ofience of a |juhlic nature. And 
upon this distinction it is, that particular acttot' 
fornication are not nunisbaUle m the Tem|>onl 
Courla, and bsirdy houses are. In sir Charles 
tSedley'a caic* it tva* said, that this eourti* 



Case lifEdmuud Curtl, 

the eurtos tnorum of the kins' 
Hid. 16il, and U|H)n this fbundatit 
been many prosecutioDS against t 
obscene plays, Ihonjfh they liari 
enough <o get the proceedings 
juilgraent, Treniayne'a Enlri^, i 
315. Lord Grey's Case, [Vol. 
this Co1Ic<:lion.]— Mich. 10 Wil 
Hill, the defendant nas iudiete 
some obsceue poems of my lord 
tending to the corruption of ; 
which he nent abroad, and w 
which he wouiil not havo done, 
bad tbonght it no libel. The Sj 
punish only iierBonal spiritual i 
words ; if it is reduced to writiii| 
poral offence, Salk. 553; ftlo. tiS; 
iiishable as a libel. Uy lord Col 
De Libeilis famosis, had nothin 
acandalouB, defamatory libels. 



naoD law lor aerenl mitdenieuiora againit the 
kbff'a Mac«,and which vera to the great scandal 
of Chmtiaiiity ; and the cattle fas, for tbat he 
•hemd his nidied body in a balcony in Corent 
Garden to a great multitude of people, and 
there did sach things, and apcke such words, 
ju. mentioning some particaUrs of hii misbe- 
faarionr, as throwing davo bottles (pissed in) 
vi el armit among the people^ Keble's Iteporta, 
lot. 1, f. SSO. Fortescue's Reports, 99, 100. 
And thii indictment was openly read to him in 
court; and thejuilices told him, that notwilh- 
Handing there was not then any Star-chamber, 
yet they would hare him know, tbat tbe Coart 
iif King's- bench was the aulot morunt of all 
the king's subjects; and that it was then high 
time to punish such profane actions, commilled 
against all modesty, wbich were as frequent, 
as if not only Cnristianity, but morality also 
had been neglected. Alter be had been kept 
in court by recognizance from Trinity term 
to the end of MichaelniBS term, the Court 
required him to tuke his trial at bar : but 
being advised, he sulinitied himself to the 
Court, and confesaed the indictment, 15 Car. 
9, 1643. Tbe Micliadjnas term fullowiiig, the 
Court considered what judgment to give; and 
inasmuch as he was a gentleman of a very an- 
cient family (in Kent,] and his estate incum~ 
bered, (not intending bis tuin, but his reforma- 
tion] they fined him only 3,000 marks, and tn 
be imprisoned a week without bail, and to be of 
guodbebariour for three years, Sid. lliti, ul. 29. 

TtSawit nf thn (.aai ■> fid anrl I in Kirnii-,- 



See the Case of Wilkes, in this Collection, 

flUl. 

Wood (Athence p. 1 100) reporla, with evident 
incorrcctueu hnwerer, tbe case of sir Charles 
Sedley, as follows : 

"In the montli of June, liiGS, this our au- 
titer, sir Charles Bnlley, Charles lotil Buck- 
fctntt (aRerwanls earl nf Miihllesex)" [more 
eommonly mentioned by his title of t«rl of 



Dorset! " air Thomas Ode, 4 
cook's liouse at the aign of the < 
street, i^ear Cnvent Garden, will 
of Westminster,and being inflaDi< 
liquors, they went into the baico 
1o that houae, and putting down i 
they eKCremeotixed in the street 
done, Sedley atriiiped bimselt' na 
eloquence preached blaspliemy 1 
whereupon a riot being raised, (h 
came very clamorous, and wouli 
tbe door next the street open ; hi 
dered, the preacher and his ci 
pelted into their room, and the 
longing thereunto were broken 
being soon spread abroad, especii 
natical party, wbo aggravated it i 
by making II the most scandaloil 
tnre, and nothing more reproach 
than that ; the said company Ve 
to the court of Justice in Wet 
where being inilicted of a riot b 
bert Hyde, lord chief justice ot 
Pleas were nil fined, sir Charle 
live bunilri^d pounds." 

Aflcr relattnif the insolent and i 
haviour of Sedley in court, Wt 
thus: 

" The day fur payment being 
Charles desired Mr. Henry K 
another gentleman, to apply the 
majestv to get it off; but insteai 
l>eggea tbe said sum of his majes 
not abate sir Charles twn-|>ence o 
" Mark," exclaims Johnson in hh 
let, *■ tbe friendship of the dissoh 

Sir John KereHby in his Memoi 
7} indicates that at that period 
highest rank and station were ii 
begging from tl)« crown the estat 
accused of forfeitable offences in i 
their conviction : and from his ac 
likely, that false a< 

obtaining sudi futfeiiorca. The 



i5n 



forpublithittg a Lib^. 



A. D. 17C'7. 



[I5S 




ahajrutokuknisatecbnicol word; id this sayinc* Why doirt yon go to the Spiritual 

OS il mj itUMi R8 an obscene little book. Court? Which was ^^ing a false reason lor 

iliiittiMcawofRrad,* there was no judg- that sudden opinion : Now it ap^iears there ia 

, htt il went off upon the chief justice's do instance of the spiritual court's intermed- 

" Who b libelled here ? This may be said to be 
a temptation to incontinence ; and therefore 
why not punishable in the ecclesiastical court f 
This tends to bawdry, as well as soliciting qf 
chastity ; but they do it only to get money." 

Lord Forteseue, at the end of his Report, 
mentions this case of the King and Curil, 
'^ which" he says " was an indictment for 
printing and publishing a libel, called, The 
Nun in her Smock ; which contained several 
bawdy expressions, but did contain no libel 
against any person whatsoever : the Court gaTt 
judgment against the defendant, but contrarr 
to my opinion ; and I quoted this case. And, 
indeed, 1 ihought it rather to be published, on 
purpose to expose the Romish priests, the fa- 
ther confessors, and Popish religion." 

But since this case of the King v. Curll, the 
Court of Kind's -bench without iiesitation ex- 
ercises jurisdiction over such publications, and 
over other oflences contra bonos mora^ which 
are not attended with breach of the peace. 

Upon an attempt (8 Geo. 8,) to move in ar- 
rest of judgment in the case of Woolston, who 
was oonvicteil on four informations, for his 
blasphemous discourses on the miracles of our 
Saviour, the Court ilcclared they would not 
suffer it to be debated, whether to write against 
Christianity in general, was not an offence pu- 
nishable io the TemjKiral courts at common 
law : it having been settled so to be, in Taylor's 
case, 1 Vent« 29^; 3 Keb. 607, 621; and in 
the case of the King??. Hall (see 1 Str. 416, [419, 
cd. of 1781-2.]) They desired it might be 
taken notice of, that they laid their stress upon 
the word * general,' and did not intend to in- 
clude disputes between learned men, upon par- 
ticular controverted points. 2 Str. 834, [8v^0 
ed. of 1781 -a] 

In the case of the King against sir Francis 
Blake Delaval, and others, which was a prose- 
cution for a conf!piracy to transfer a female in - 
font apprentice for the purpose of prostitutioni 
lord MuiisiWId said : ** 1 remember a cause in 
the Court of Chancery, wherein it appeared, 
that a man had formerly [ipi. formally] as- 
signed his wife over to another man : and lord 
llardw icke directed a prosecution for that trans* 
action, as lieing notoriously and grossly against 
public decency and good manners. And so is 
the present case. — ** It is true, that many of- 
fences of the incontinent kind full properlj 
under .the jurisdiction of the ecclesiastical court, 
and are ap|iroprinttd to it. Hut if you except 
those appropriated cases, this court [H. R.] 
is the cusfoa morum of the people, and has the 
superintendcncy of offences contra Ifonus mores : 
and upon this ground both sir Charles Sedtry 
and Curll, who had been guilty of offencr's 
against good manners, were prosecuted here.' 



At mmk of Soodind, bear ample testimony 
ti iht fRiaknoe of practices of this sort in 
tet kiipH, during the reigns of Charles the 

Jlf jM. 21 Jac cap. 3, it is declared and 

' Iht all commissions, grants, &c. 

KMde or granted, of any grant or 

• M jf *^ l*n€fit» profit or commodity, of 

mf Mtee, penalty or sum of money,' that 

*""-'^ te Ai bv any statute before judg- 

!<V^ bio, are altogether contrary to 

^ thb realm, in no wise to be put in 

>• What was said by the judges in 

iuMrfpnal statutes (Hil. 8 Jac. 7 Co. 

VfHI mdily be believed ; that in their ex- 

|9M> Mdi grants made the more violent 

y "j* ptactcdiag against the subject, to 

S^f^ ^ jmtice, and offence of many. 

2"^'"y* lord Coke (3 Inst. 187,) < such 

VnaeoKoders worthy of severe punish- 

IB.-* ad to " these hunters for blood" he 

mm Ijm esdamation of 31icah, •' Thev all 

Mnil Ar blood, and every man huntetb his 

Wbtidaih." [Our translation says, with a 

'ihftecBse of the Queen against Read, 11 
Ai Itf, h was held that a crime that shakes 
l%bi (see l Hawk. ch. fi,) as profaoencss 

■ At itage> [u to this, see stat. 3 Jac. 1, c. 

a fa. is indictable ; but writinjgf an obscene 
■ aoi indictable ; but punishable only in 
kipnual court. 

Kiaie of the Queen v. Read (Fortesc. 98,) 
Misadictment for printing: a lascivious and 
ftnBittel, enUtlpd, «« The Fifteen Plagues of 
AHfcibead." The defendant was tried be- 
kM chief justice Holt, and convicted : and 
n notion io arrest of judgment, it appears, 

■ jo'l^^roent was given by the whole court 
ribedetefjditnt. And by Holt, C. J. '* There 
iceeMa&tical courts: why may notth'uibe 
■nhcd there 'f If we have no precedent we 
loot punish. Shew me any precedent.'' 
«rU, J^ *• This is for printing bawdy stuff, , 
It reflects on no person : and a libf I utu:;t ha I 
unit some particular pei'son or iic-rsons, or 
kiofl die government. It is stuff not fit to 
Bratjuoed publicly. If there is no remedy 
the Spiritual court, it dues not follow there 
M b« a remedy here. There is no law to 
aiih it : I wiih there were ; but we cannot 
^ law. It indeed tends to the corruption 
|Md manners, but that is not sufficient for us 
piMh. As to the case of sir Charles Setllcy, 
■V was something more in that case than 
■■ii^ bis naked body in the balcony ; lor 

■ tMe was tfvod vi et arm'u he pisseil down ' 

a Ike people's heads." And he cited lady 
ek's case, which was in llie Star-cham- 
<^*bcre tfae^ " quashed the indictment be- 
"^ ■" lor Batters of bawdry." Holt. 



159] 1 GEORGE U. Case of Edmund CurlL 

dliogr, wliere it it reduced to writings, or in Sedlej's'caie, who only expowd bimtdf 

print. people then present, [nalced,] who might 

Chief Justice Roymond. I think this is a whether they would look upon him ot 

case of Tery great consequence ; tliough, if it whereas this book goes all over the kin( 

was not for the case of tlie Queen v. Read, 1 Drunkenness and swearing were panishi 

should make no great difficulty in it Cer- tlie Spiritual Court, before the Acts ' 

tainly the Spiritual Court has nothing to do made them temporal ofieoces, and in ' 

with it, if in writing: And if it reflects on re- the jurisdiction of the Spiritual Court is \ 

ligioo, virtue, or morality ; if it teodsto disturb Probyn^ J. inclined this to be punii 

the civil order of societv, I tliink it tB a tcm- at common law, as an otfeoce against the | 

poral ofience. I do not think Ubellus is always intending to weaken the bonds of civil so 

to be taken as a technical word. Would not virtue, and morality. 

Trover lie *« de quodam libello" iutitulat the «„. .. . .,_ ^ ^^ - ^^^^. ^«.^„^ 

Fartetcue^ J. 1 own this is a great of 




^^uT^aI Z^Z^iZiSuZZr^ ^^^ Generd and my^lf. 'But Curft not 

irression. At common law, druokenness, or :^^ «*.„« j^i ^^ • .:„ » <.^« : *. j^i. 

Kg and .wearing. we4 not puniahabte, '^^f^f^^^Z^Zli ^^^^^ 

andyet IdonotftodtheSpiri.«a| Coort look LlS? SaSTfcm bU^o^^ :Su5 

nouce of ihem. Tbui .. but a general iohcita. ^^ .^^ ^j ^ ^ 

t.on of chaaUty, and not indictable. L*dyPur. « two or three aaya. they ga»e h a« then 

beck's case was for procnriDir men and women _;_,-.^ „„:„:»„ 'AL, .kL 1.. . 71— Zl 

to meet at her bous^. and blld not indictable. S™*'" X ^.^H ft J« „Ui^ ?K^J^ 

icular facte to make feu-^^I^' 'f^^P^.i*-'^ 



MMIIIIV40 n, m WDicn were is noiuinir in ins _■ , , ,■ „ ,k«™ ^.. »» n^...:.. .« *-ii. 

*« i-i7i • ^ L • I -J » went upon, tnere was no occasion to talk I 

case. A libel IB a technical word at common n^„.,,riJ, ^!c *il i- i. 

i._ . —J I _..^ ._- (k^ ^.. «f >k<. rk..^« Court's being cenior morum of the king' 

•^ • Bij!JS5.r.i. L^, .Wo^r« i^^- They said, if Read's case was to! 

Charts SedleySi^cnhere was a for«^ of tt? ' aSN^^S S.S wi^'iSS 

tbrowinc out boldes upon the people's beads. ^ ;„ jg^ ^^^^^^y^ ^ ^^ ^^„ j,^^^ 

HtffnoldSy J. It is much to be lamented, 
if this is not punishable : 1 agree there may be This Edmund Curlt stood in the ptik 

many instances, where acts of immorality are Charing- Cross, but was not pelted, or usi 

of spiritual cognizance only ; but then those for being an artful, cunuiog (though w; 

are particular acts, where the prosecution is fellow, he had contrivinl to have printed | 

pro salute anima of the offender, and not where dispersed all about Charing- Cross, teltin 

they are of a general immoral tendency ; which people, lie siood there for vindicating Um 

1 take to be a reasonable distinction. Read's mory uf queen Anne ; which had such i 

case is indeed a case in point : but I confess V feet on the mob, that it would have 

should not have been of that opinion. Libelius dangerous even to have spoken a. 

docs not ex vi terminU import defamation, but him : and when lie was taken down out 

is to be governed by the epithet, which is added pillory, the mob carried him off, as it vr 

to it. This is suituy worse than sir Charles triumph, to a neighbouring tavern. 



1 



Trial if WmamHaUt. 



A. D. 1728. 



[let 



I. The Trial of William Hal^s, for forging* a Promissory 

Note for 6,400/. in the Name of Thomas Gibson, esq. and 

PartnerSit ^^^ f^r publishing the same as a true one, knowing 

it to be false and counterfeit, at the Session of the Peace, 

ad Oyer and Terminer, for the City of London, held at the 

Old Bailey, before Mr. Justice Page, J and Mr. Baron Carter: 

SG£OUG£ II. A. D. 1728. 

December 9, 1728. 

ftw. OyEZ ! Oye« ! Oyez ! All manner 
vnin,lhitbaTe any thing to do at this 
••rf Oyer and Terminer, holden for the 
ft«LBBd<m,Bnd eaol-dclnery of Ncwgrate, 
n>ftrlhf!city of London, and county of 
dnwnear, and giye your attend - 
^n\ Yon good mm of the ciry of 
^--^MBmoDed to appear here thisdoj', 
•J "e trill between our aovereign lord the 
Wl vd William Hales, answer to your 
piia and peril that shall coiue 



Scynoari Samael Cranmer, &c. 



toSSiUl^"^^*- William Hales, look 
f?|Meagw. Hamnel Cranmnr 

•9**9»«- My loni, I have a paper deli- 

There are three worthy persons 

I) We desire may be set aside. 

'^Hf' Yoii know what the law isjl : if 

r • ""»*)• consent they should he with- 
■■^ W well. 

■^Icyflcj. Wc know there Are enou^'i, 

jtt jMrr. Richard Knollys. 

g- S^V"*"- He is related to Mr. Gibson. 

wal^«''ifccr. Prove it. 

■jwa C«rkr. Pray, how is Mr. Gibson 

fcrj. Diinili n jg for ^ notg ^p j^Ir, ^jij,. 



kiaHLf^^i' ' ^^^^^ recommend it to Mr. 
*womey. I wpuH have this trial without any 

■hi ^.^"**V*^- ^^- ^^' ^^' "» 7' ^- J «««. 
"^uw iwowing cases relative to the traiis- 

■^ **)'<i»0«ve rise to tliis Trial. 

«lr J %!."'• **»• ^^^^ »n short hand hv 

• Z. V ■ ^J^^'-tWner Edition, " 

JAM^'.r'*"'- "'"'t. vol.7, p. 691; and 

2^^*^ Lues cf Pope, and of Havajje, as 



colour of unfairness whatsoever ; and as Mr\ 
Gibson is concerned, if he be really a- kin, I 
would advise Mr. Attorney to v\aive him. 

Attomcif General^ (sir Philip Yorke.) My 
lord, 1 am sure it is our desire that this trial 
should proceed with all the fairness iraaj^ina* 
ble ; therefore, without entering into the ques* 
tion how fur Mr. Gihsou is concerned, or, if h« 
is, what consequence thai may have, 1 waive 
this gentleman. 

Then the twelve Jnrors, who were sworn, 
were counted, and their names were as fol- 
low, viz. 



Samuel Cranmer, 
William Howard, 
Thomas Swayne, 
Thomas Port, 
Ralph KnoY, 
Cornelius Alason, 



. A. 11 \u:^ ?r' *"**» »o T^o"™ ''^ncs, (book R, 
i 1^ i«l!'T'' *^fy a^"^ niy 'Of** justice 
^iS^ ^^"^ ^^^ ^^^^"^ ^'"^^'" ^"■ 

^,*ii^'*e the celebrated * Letter con- 
>jy*^^Warrants, Seizure of Papers,' 



• ■*■ aicribed to lord chancollf»r 
to the first lord Asliburton. 



John Pott, 
RichanI Chauncy, 
Jame^ Coulter, 
Harvey S|)ragge, 
Joseph Jackson, 
Robert Knaplock. 

CL of Arr. Crier, make proclacnatioo. 
Crier. If any one can inform, &c. 
ChofArr. opened the Indictment, which is 
as follows, viz. 

** London, ». Juratori^ pro Domino Rega 
super sacranientum suuui pra>sentant, quod 
Willielmus Hales, nu|K*r de London, Aurifa- 
bcr, Anglic^ Goldtmith^ existens persona ma- 
lorum nomiuis et famiB, ac ronversationis in* 
lionestflc, ac injust^ et fraudulentf-r niachinans 
et intendens quendam Tlioniam Gibson, uec- 
non quosdam Johaunem Jacob et Rohiertum 
Jaconib, participes ejuKdcm ThomsB Gibson, 
ac diversos alios dicti homini Reyfis nunc ligeos 
ct suliditos, de iiisfrnis deuariorum summis 
fraudulenter et iniqub decipere et def'niudere, 
septimo die Septeuibris, anno regni Domini 
Georp^ii Secundi, nunc Rep^ig Matj^i.&e Britan- 
niee, &c. sccundo, apud Loudon pnedict, scili- 
cet, in nnrochia Ss^nrti Dunstani in Occident', 
in waniri de Farringdon extra, vi et nriiiis, 6cc. 
tiilso, fraiiduleiitcr, et decrptiv^ i'abricavit et 
rontrafin;, ft fiibriciri rt coutralifri r ausavit, 
quoddam scriptum in verbis et iiguris sequent!- 
bus, videlicet, 

" Aiifiu$t 27, 172R. 

" I promise to pay to Geornfe Watson, esq, 
or hearer, the sum of six llioitsand four hun- 
dred p(»unds, at tlem-.ind, the like value recciv-* 
cd. For myself and pai titers, 

** Tno. GmscLN." 

«* £. «, 100. 



31 



163] 2 GEOllGE II. 

ad frmwe (lamniim pncfat' Tlioroft GibMn, et 
pnctJicl' Joliannis Jacob et Uoberti Jacomb, 
particip^itn ejusdem TliumiE Gibson, in malum 
excmplum omnium aliorum in hujusmodi casu 
delinqucntium, ac contra pacem dicti Domini 
Itesfis, coron' et di^nitat* suas, &c. £t jura- 
tores pnsdicti super sacrainentum suum prsc- 
dictum ulterius praesentant, quod pr«dictus WiK 
lielmus Hales neqiiiter et deceptive macbinans 
et intcndens prst'at* Thomam Gibson, necnon 
pncdict* Johannem Jacob ct Robertnni Jacomb, 
participes ejusdcni Tbomse, ac diversos alios 
subditos et lifi^eos dicti I>f»mini Re^ nunc, de 
ma^nis dcnanornm sumrois fraudulentcr et ini- 

aul* decipere et defraudare, postea, scilicet pne« 
icto septimo die l^ptcmbris, anno secundo su- 
pradicio, apud Lon4lon pnedicl', scilicet, in 
parocliia et warda praedict', vi et armis, &c. 
<|uodilam scriptum falso fabricaturo et coutra- 
fiictum in verbis et figuris sequentibus, Tide- 
licet, 

« August 27, 1728. 
** I promise to pay to George Watson, esq. 
or bearer, the sum of six thousand four hun- 
dred pmmds, at demand, the like value receiv- 
ed. For myself and partners, 

«» Tho. Gibson.'* 

j;, 6,400. 



Trial of tVaiiamHaleSt 



c 



scienter, illicit^, et fraudulenter produxit et 
piiblicavit, et product ct publicari causa vit, 
tanquam verum et legitimum scriptum, (dicto 
Willielmo Hales adtunc et ibidem beu^ sciente 
scriptum ult' mentionat' per ipsum Willielmum 
Hales sic ut preef'ertur product' et publicat', 
falso fabricat' et contrafact* fniasc) ad grave 
damnum pncfat' Thorns Gibson, ct praedict' 
Johannis Jacob ct lloberti Jacomb, participum 
igusdcin Thomtc, in malum exemplum omnium 
aliorum in hujusmodi casu delinquenlium, ac 
contra pacem dicti Domini Regis nunc, coron' 
•t dignitat' suas, &c. Et jnratores praedicti 
super sacrameutum suum nrtcriuit pnesentant, 
<|uod prtcdictus Willlelmus Hales niachinaus et 
fraudulenter inteudens prcpfat' Thomam Gilison, 
occnon precdict' Johannem Jacob et Robertum 
Jacomb, participes ejusdem Tliomie Gibson, 
ac diversos alios dicti Domini Regis nunc 
•ubditos, de magnis denariorum sunimis frau- 
dulenter et iniqu^ decipere et defraudare, 
preedicto septrmo dieSeptembris, anno secundo 
•upradirto, apud London predict', scilicet, in 
parocbid et wardft pnedict', vi et armis, &c. 
ialso, fraudulenter, et deceptive fabricavit et 
contrafecit, et fabricari et contrafieri causa vit, 
quoddam scriptum gerens tfat' vicesimo sep- 
timo die Augusti, anno Domini millesimo sep- 
tingentesimo vicesimo octavo, in se purportans, 
quod pnedictus Thomas Gibson pro seipso et 
participibus promisit solvere Geor^^io Watson, 
arm', aut latori, summam sex mille quadrin- 
gent' librarum, super demand', consimili valore 
recept' ad grave damnum pnefat' Thomas 
Gibson, et predict' Johannis Jacob ct Robcrti 
Jacomb, participum ejusdem Thomee Gibson, 
in malum exemplum omnium aliorum in hu- 
jiitmodi otia deuo^aeotiuiDy ac contra pacem 



dicti I>omini Regis, coron' et dignitat' 
&c. Et iuratores prseiHcti super sacram( 
suum ulterias prsesentant, quod pmM^ 
Willielmos Hales nequiter et deceptive vdm^^ 
nans et intendens prsfat' Thomam GibsOB^ 
prsedict' Johannem Jacob et Roberium JaooiP 
participes ejusdem Thomoe Gibson, ac divei^ 
alios subditos dicti Domini R^s nane, ftufl 
dulenter et injust^ decipere et defrandmd 
magnis denanorum summis, postea, feilte 
pruraicto septimo die Septenbris, anno aecadfl 
supradicto, apnd London pnedict', adliceti i 
parochi^ et warda pnedict', vi et armis, ta 
quoddam scriptum falso fabricat' et conlrafad' 
gerens dat' vicesimo septimo die Anguiti, hh 
Domini millesimo septingentesimo vienM 
octavo, in ae purportans, qaod predictos TW 
mas Gibson pro] seipso et participiboa proairi 
solvere Gcorgio Watson, Ann , aat latffl 
summam sex mille ^uadringent' librarM 
super tfemand', consimili valore recept',ad6aM 
illicit^, -et fraudulenter produxit et publioaril^l 
produci et publicari causavit, tanquam TcnM 
et legilimum scriptum, (prefato Willielai 
Hales adtunc et ibidem bene sciente tcriplHj 
ull' mentionat', per ipsum.Willielmum HaMt d 
ut procfertur product' et publicat', falso fabrioil 
ft contrafact' fuisse) ad grave damnum praM 
Thomee Gibson, et prsefat' Johannis Jam ■ 
Roberti Jacomb, participum ipsius ThdM 
Gibson, in malum et pemiciosum exemphl 
omnium aliorum in consimili casu drlinqnia 
tium, ac contra pacem dicti Domini K^ 
nunc, coron' ct dignitat* suas," &c. 



N. B. This Indictment vras found 
the commission of Oyer and Termioer, wk 
not U|K)n the gaol delivery. 

CI. of Arr, Upon this indictment tha 4e 
fendant hath been arraigned and pleaded Ni 
Guilty ; and for his trial he puts himself opM 
God and his country, ivhich country yoniM^ 

Your charge is to inquire, &c. 

Mr. Strange. May it please your lordship 
and you gentlemen of the jury ; this is an in 
dictment against William Hales, of LondM 
The indictment sets forth, that he being < 
person of ill fame and reputation, and intendin| 
to deceive and defraud Thomas Gibson, Join 
Jacob, Robert Jacomb, and divers others, did 
on the 7th of September, forge and coantcrftil 
and caused to be forged and counterfeitcNl, i 
certain note, viz. <* August 27, 1728. I pn 
mise to pay," Sec, This is laid to be to tb 
great damage of the said Thomas Gilison, Ba 
and to the e?il example of others in like cai 
offending, against his majesty's peace, &c. 1 
sets forth, tliat, from the same evil intentioai 
he did produce and publish, and caused to h 
produced and pnblished, a certain note follow 
mg, viz. <* August 27, 172B, I promise to pay,' 
&c. That he published this as a true aw 
lawful writing, knowing the same to be hha 
forged, and counterfeit, it sets forth, tlnit k 
forged and counterfeited, and caused to tn 
forged and counterfeited^ a certain wiiiim 



for a Misdemeanor. 

■pHl f7| 17 S8, piirportins^ that the 
I Ihomu GUmoo, for himstflf and 
, pmiMed to pay Georf^e Watson, or 
Moot GeDtleneo, the indictment sets 
In on the same 7tli of September, 
dly,tbe said William Hales did pro- 
d ctoMd to be produced, a writini^, 
fiipted that the said Tliomas Gibson 
MMd to pay Geunre W^atson, or 
,§0X>1, and published this, knowing it 
iifid at the same time. And this is 
i to the great damajire of the said 
»Gib«Hi, &c. and to the evil example 
icn io like case oflTendini;-. To this 
iithe bath pleaded Not Guilty. But 
live the fact, it becomes your duty to 
bin thereof. 

tOL May it please your lordship, and 
iemen of the jury ; 1 am of eouoael in 
for the king. The Charge against 
^t Mr. William Hales, is for forg- 
e in llie name of Mr. Gibson, pavable 
t Watson, esq. or bearer, for no less a 
6,400/. and publishing this note as a 
knowing it to be false and counter- 
though the fact is laid different ways 
lictment, yet it is upon one and the 
^f and the difference consists only in 
»f alleging it. 

eotlemeu, is the first case of the most 
lary scene of forgery that hath come 
unioation in this place, committed in 
anoer, and attended with such cir- 
ei , as make it necessary to be prose- 
b the greatest weight and solemnity, 
imple and terror to others. AW kinds 
' are crimes of a most pernicious oa- 
bey tend to weaken and destroy that 
commerce which ought to he main- 
oDgst men : but forgery in the case 
able notes, which have a particular 
giren to them hy act of parliament, 
priTate credit is greatly assistetl, and 
ied no, is one of the most dangerous ; 
t should prevail, the consequences, 
ot eiisy to be foreseen, would certainly 
ive and destructive. 8uch is the na- 
le offence whereof the prisoner stands 
bot howsoever heinous that may he, 
will depend entirely u{>on the evidence 
i. 

men, the advantage taken to commit 
ery was from an act of kindness and 
one to the defendant. He some time 
tiled with one Mr. Booth, book-keeper 
ibsoo, to accommodate him with two 
r letters franked by Mr. Gibson, in 
be pretended) to send news into the 
a practice which 1 fear is too com- 
t 1 hope this instance will have some 
nake it less frequent. It will appear 
rom several circumstances, that the 
ucstiqn was made on one of these 
K, gentlemen, it is a promissory note, 
, For myself and partners, lliomas 
The body of the note ia all of one 



A.D. 1728. [166 

hand- writing, not pretended to be Mr. Gilison's* 
When we come to the subscription, there is a 
rasurc at the end of the word * for,' which, 
upon holding the peper against the light in 
plainly to be seen. The HiannerofMr. Gib- 
son's writing being, pretty wide and loMe, tlie 
letter o in the word * for appears to have been 
crowded between the other two letters / and 
r, and is of a remarkably different cnarac* 
ter and fresher ink than the others. From 
hence the manner of making the forgery seeine 
to have been, by rasing out the two e's at the 
end of the word * free,' or at lea&t the greatest 
part of them, and inserting an o in the manner 
1 have mentioned, and then ailding in the same 
line, aHer this word thus made to be ' for,' 
these other words, * Myself and partners ;' 
which standing a little above the name, Tho. 
Gil»son, serve as a proyier suliscription to this 
note. It will appear likewise, that the stroke 
at the beginning of the m in the word ' my' ia 
of the older kind oi ink, and probably was at first 
fiartof one of thee's in the word ' free.' There 
is something observable in the figure and ap- 
pearance of the paper itself: the ohl foidingy 
which is most worn, answers to that which pro* 
bably might have been the fold of a cover of a 
letter, and the pa|ier is torn off at one side and 
at the top. 

This, gentlemen, being the nature of tlie 
writing, and the manner in which it was trans- 
formed from the direction of a letter to a iiote 
of this value, we shall, in the next place, lar 
before you the use which was matle of it. And, 
gentlemen, tlie time pitched upon for this pur- 
pose will lie material for your considerattoD. 
Mr. Gib&oo was gone to Bath, and it was 
ihougl.t proper to date the note the day U-fore 
he went. No u^e was made of it till some time 
afler he m as gone, tliat there might he no r<Him 
for applying to tlie p« nnn himself. The day, 
and lime oljhe day, which were choMru to out 
it off, were Saturday at night ; when orobahty 
there wou'd lie no ^ipfiortumly of riiaain:; in- 
qtiiries till tli« Monday m'^rniiig loll owing, :ind 
consequently a wh'4e d:iy luigUi be gairK-d. 
This being 'the opiKirt'iiniy r#'s#iKi'd up«>n, it 
will appear that cu Kaiarday tlie 7ih of .Sep- 
tember, Mr. lUle^ made u**- of an iii*i/uff»^fi% 
that hath confessed himv-lt vt hat*- 1>«* u lin** 
in hy him, one Thomas ICum*«'y, a w/»,'..r ?•*>- 
low bred to the sea, who wa« a»iv>l»n*' y u-.'i^r 
his influence; told him lie mi; -t fg'i w.' f tint 
into the city, bid hiin pnt on a j.*-t.o. »- •**«' 
of clothes.and observing th^t In- '.*i; » «-*■ 
hat upon his head, advised him "' ^i*'^ *7'' 
behind him, and gave him * p4.-. •<»- ' 
make him appear still Morelk*- ^ rjan •• ''•• 



ness, Mr. Hales, as th^ w^« 
Strand, bought biin a ifr^\^' ^^ 
case. Tlience becaimt-: .-*<**-'"" 
and bought him a dark y- *'l 
it on, and said, it ^ 



•». 



equipped, he 
in 8hire-laae; 
Bumsey net 
employed, • 



teok hi*. 



■/i'X * 






167] S GEORGE 11. 

Without the porter*! sayioflT one word, Hftles 
asked, If be did not want Ruqasey P The por* 
ter answered, Yes ; and pmduoed a letter di- 
rected to Rumsey, which Mr. Hales took, and 
readily found inclosed in it tlris note for 6,400/. 
fmyalile to George Watson or bearer. In the 
letter were two names written with sums 
aq[ain5;t them thus, lady Harriot Elliot 4,S00/. 
8ir John Hyndc Cotton 2,100/. and under- 
neath, * payable to them or hearer.' These 
names only being* in the letter, Mr. Hales took 
upon him to order Uurasey to write under 
them, < James Morcton, esq. or bearer;* and 
when this was done, that part of the letter with 
the names was torn off, and nut into the pocket- 
book (which bad been bou^i^ht for tlie purpose), 
together with the note for 6,400/. and a Bank- 
note of 20/. and two of S5/. each. Then the 
|>ri8oner gave it to Nr. Rumsey, with direc- 
tions to carry these notes to the shop of Mr. 
Snow and Poltock without Temple- bar, and 
there take their cash -note payable to James 
Moreton, esq. or bearer, fur 70/. the produce of 
the Bank-notes ; and in exchangfc for this for^r- 
ed note, to take one of their notes, payable to 
the lady Harriot £lli()t, or l>earer, (or 4,300/. 
and another to sir John Hynde Cotton or 
bearer, for 2,100/. The prisoner gave strict 
instructions to Rum^sey, that, if at Mr. Snow's 
he should lie asked where he lived, he should 
answer, at the upper end of Bond-street; if he 
shouUI he asked hij name, he should say, Tho- 
mas Fowler, or any other name besides his 
true name ; thair it was indifferent what, so it 
was not the right name. Rumsey, thus in- 
structed, went' immediatfly to the house' of 
Mr. Snow and Poltock, which Hales took care 
to shew him. Mr. Poltock took the small 
Bank notes, and gave his note for them ; hut 
olisoryinjr the appearance of the note for 6,^00/. 
that it was written on a dirty scrap of pa|>or, 
and the difference of hand- writings m it, would 
have notbinof to do with that. During this 
time Haleti kept at a little distance ; and Rum- 
sey relurninff without success, he directeil him 
to go to Mr. Hoare's, and (as he had csoncerted 
in the former instance) to nay in a small sum 
of money not exceeding 7o/. and take their note 
for it, and to (>xchauire the note of 6,400/. for 
their notes. The names of the persons to whom 
the notes were to be made payalilo were then to 
bech;ui'3:ed ; forthestrrtlni^eni wns,to make use 
of the names of i^ersons that dealt at the several 
shops, in order to gain credit to the transaction. 
Therefore the names of two honourable persons, 
wtl! known at Mr. Hearers, wen* pitched npon; 
and the new direction which the pri.sonerpfare to 
J^imsey was, to take one of Mr. Hoare's notes 
for 4,300/. payable to Hir Richard Grosvenor or 
bearer; and another tor 2,100/. pay aide to sir 
John Hynde Cotton or bearer; and there also 
if he was asked to give in his name, Thomas 
Fowler. When it was near dark, Rumsey 
went to Mr. Hoare V, and exactly pursued hit 
orders. Thcv made him oot A small note for 
the casli, and gave such eredit to Mr. Gihsont 
miBe, as to fg;m bim Ibe notes bf dtiired, in lies 



Trial of WiUiam Hales, 



lu 



of the 6,400/. note : all wliich Mr. Riunt)^ A 
livered immediately to Mr. Hales, wlio ifMj 
for bim at a fruit-stall not far from the sbnp. 

Gentlemen, Nr. Hales beinf:^ now poiieM 
of three notes of Mr. Hoare's, one fbr-fOl 
another for 8,100/. and a third for 4,S0Of.lbi 
next part of his scheme was to neffooiataMi 
exchange them for other notes from Mfei 
to hand, in order to entangle the aflfairkUd 
make it difficult to trace out the cheat : Ibem 
fore liis next orders to Rumsey were, t6anf 
the note for 4,300/. payable to sir Rfrfaai 
Grcsvenor or bearer, to 5lr. Brassey 's spd flp 
changfe it for smaller notes. RunnseJ^ ml 
thither that night, and took four smaller MM 
of Mr. Brassey's, in lieu of Mr. UoaraVw 
two of 1,000/. each, one of 1,200/. and ifi- 
ther of J, 100/. But though these notes 4 
Mr. Brassey's were given out on feSativdqf 
Sept. 7th at night, they were made to hM 
date on Mouda^r the 9tb; because, h brfjg 
late in the evening, the cash-book was mm 
up for that day. These four new notes Mr 
Rumsey delivered to Mr. Hales, who wailnl 
for him again at a very small distanoe fipsii 
Mr. Brassey's -shop. • 

The next part of the scheme was to chasp 
these notes into negocialde securities eqnil ll 
cash, in which there was probably a dsdUl 
view ; partly to intricate the affair still ftitMi 
and partly for the greater convenience of pa^ 
rying off the fruits of their iniquity, wbfi 
that should become necessary: therefora IM 

Itrisoner sent Rumsey to Mr. John Hah^ ■ 
iroker in Exchange- alley, and directed liisili 
acquaint him, that he came from Mr. SsMpI 
Palmer, in Mansel-street, Goodnian*s-fisNb| 
with orders to buy South-Sea and India bsiii 
to the value of 3,400/. against Monday mocBi 
ing following. 

Thus the matter rested till Monday tho OH 
of Sci»tember : but on the Sunday the prisoom 
was liot wanting in making his preparatioosi 
He then appointed one Roliert Hall, his tayisi^ 
to meet him at Lloyd's coffee- hoube in Lea- 
bard-street, at eiuht o'clock the next momiag, 
without leitint; him into the secret of what M 
was to i\o. Hall went accordinsrly, ami tbcff 
foimd one Samuel Lee waiting for Mr. Hales | 
nn instrument made use of by the prisoner ifl 
another transaction, which wdl one day appcil 
as rank a forgery as this. About niue Halsi 
came, and p;ave to Hall Mr. Brassey's note 
fur 1,200/. directing him at the i^ametime Iq 
go and receive 050/. in guineas, and have k 
indorseil off. He told Hall, that if he was 
asked, he should tell them he lived in the 
Hav-market, or any where else except tbs 
reaf place of his dwelling, and that his uams 
was John Roberts. So here is anniher shan 
name and place of abode. He obeyed thess 
orders, received the money, nut in gold, but m 
three Bank-notes; and when the persons io 
Mr. Brassey's shop enquired his name, bo 
told them John Roberts. Whilst Hall was m 
tbo shop, he observed that Mr. Hakes waUnd 
by; 00 joiloas was be of bis agents, t»r il 



for a Misdemeanor. 

vifilaat to see how things succeeded, 
stif ered the Baok-notes, together with 
iHev*s note, on which the 650/. was 
I ofll, At Ltoyd'g cofTee-honte ; and af- 
• met him again at Ja new ay's cofTee- 
Ib ComhUI. There llales retarned 
mk- notes to Hall, and ordered him to 
m Bank, and tltere recei?e the money 
mi in goM. Mr. Hales was still so 
or iflBpatient, that whilst Hall was at 
ik icoeiving tlie moneyt he took occa- 
BMDe in there a|>oo pretence of cHane* 
;wiea, and taking no notice of Hall, 
my ; after which Hall went with Itim 
rerot and paid him the G!>0/. which he 
I at tb« Bank. 

emen, thus far the design succeeded 
9ere are several good notes obtained, 
»e cash got, without discovery: but 
ision of that will arise out of the part 
ftmuey was to act on the Monday 



A.D. 1728. 



[170 



ly yon obsenre there are two notes 
Iloare's behind, whereof no accmint 
B yet g^iven, viz. that of 70/. and that 
I/, payable to sir John Hymie Cotton, 
f nrfaich Mr. Rumscy was employed. 
appear, tliat Mr. Hales krpt Rumscy 
Jlj with him, and lodged him in his 
I Saturday and Sunday ; and on Mon* 
nnngt when he went into the city, 
Rurosey with him, took care to shew 
'. Alderman llankey's shop, and dt- 
lim to exchange tfiese two notes for 
d 2,100/. for Mr. Hankey's notes. 
' went to the shop, and they iiaving no 
f about exchanging Mr. Ht^arc's notes, 
I ti.em, and gave him two of thnr own, 
1,100/. and another for 1,050/. both 
to ^iainuel Pahncr or bearer ; and the 
ig QOl. was paid in money. As to tlie 

1,100/. the whole was rcceiveil upon 
Ir. Aulerman Hankey's the same day, 
•vtn wiio called himself Samuel Lane, 
einen, the next part of the transaction 
to tlie South Sea and India bonds for 
ivhicli hail been ordered to be procured 
s the broker. On Monday mornint>^ 
- received the money of Mr. Hales, 
eclions to carry it to ilaU, and pay fur 
nnusi. WliiUt Uuiuiiey was gone to 

this, it appears that Mr. Hales was 
is occasion also uneasy aiirl impntient, 

Idiriisey st.Lye<l too long, and sent a 
or hi'ii to Huls's ottice, by the name 
mas Fowler ; and that Uumsey an- 
to that name, and went along with the 

emen, we shall next produce to you 
not made U[t by Mr. Hals or Mr. (-oie 
ler, which will appear to have licen 
ut in these feij;;ued names, Samuel 
esq. per Thomas Fowkr; whereas 
I persons had any thing to do in the 
ion, bnt the whole was negociated by 
■d Ramsey. Aud it will oe proved, 
eaever the privouer sent Rumsey apou 



any of these errands, be considered the quca- 
tions which were likely to be asked, and gave 
him instructions how to make proper answers, 
and some of them in writing. 

While these things were transacting, the 
accident happened that led to the disoovery. 
About eleven o'clock on Monday morning, Mr. 
Humphreys, a servautof Mr. Hoareandhia 
partners, who carries out notes and receivee 
money abroad, carried the note for 6,400/. to 
Mr. Gibson's, and, Mr. Phillips the cash- 
keeper being abroad, left it with Mr. Cram* 
lington, another of the servants, with directiona 
to pay the money upon it to Mr. Bromfield at 
the Bank, who was to place it to Mr. Hoare*« 
account. When Mr.. Phillips came home, ba 
was surprised to find such a note with Mr. 
Gibson's hand to it ; the note not of his own 
writing, thouffh it is always his practice to write 
the body of his notes as well as the subscrip- 
,tion. And no notice having been S[iven of it 
by Mr. Gikson, upon this be conceived a sus- 
picion, and resolved not to pay it till be bad 
lirst spoke to Mr. Jacoinb. The note was 
shewn tf> Mr. Jacomb, who, upon finding out 
the rasure, and observing the other circum* 
stances which I at first mentioned to yon, im- 
mediately suspected it to be a forgery, and took 
methods for the discovery. He found out, that 
one of Mr. Htare's notes had been exchanged 
for Bank-notes, and traced out the numbers; 
upon which notice was immediately giveu at 
the Bank, that if any of those notes were 
brought for payment, they should be i^topped, 
and the person secured. It happened soon af- 
ter this, that Mr. Hales desiguing to get tbe 
remainder of the effects into his pocket, carried 
Rumsey within sight of the Bank, (who was so 
ib^norant a person, that he asked him whether 
it u as a church) and directeil Uumsey to re* 
ceive money then' on two Ijank- notes, each for 
'^00/. part of the Bank-notes L^iven out by Mr. 
Brassey ; and theiv upou the omeers of the Bank 
stopped Uunis'^y, and enquired into the matter. 
Mr. Ramsey uus first interrogated how lie 
came by tliese notes ; and atler much hcsita-' 
tion and dithculty, at last said, he had them 
from a gentleman that stayed for him at Robin's 
coAee- house in the Old Jewry. Upon this 
they sent a constable, and found Mr. Hales 
there, having in his hand Air. Brassey 'a uote 
for 1,100/. This note he endeavoured to con- 
ceal, but was prevented. They brought him 
to thfr i ank,and upon search found about him 
the %cry effects which were the whole produce 
of Mr. Hoare's three notes, except about tlie 
sum of which was wanting. He was 

asked, how lie came by them, and by the note 
siirned with Mr. Gilisou's name, payable to 
Watson, with which he procured them. The 
account he gave was, that he had them from 
one Mr. Sanuiel Palmer : but he there declared^ 
that all the eflects that he had about him were 
the produce of this note, and wrote down in a 
paper how he had disnoM>d of the rest. 

Ge^.tlemen, this will appear to you to be tbe 
nature of tbe case i and upon this Mr. llales 



171] 2 GEORGE II. 

was committed, and Rumsey secured. And, 
ffentleroen, I apprehend, tliat, though this be a 
hmt: series of facts, yet it will amount to a clear 
eTidence against the prisoner. No reasonable 
man can expect proof to be made of the Tery 
act of forgery. Such iniquities are deeds of 
darkness, and those who commit them do not 
call witnesses to attest the performance : but 
next to that we have the strongest evidence. 
What arises out of the note itself is of great 
weight : the circumstance of the rasnre and 
alterations, which 1 will not repeat : the body 
•f the note not of Mr. Gibson's writing, whereas 
it is his constant practice to write the whole 
note with his own hand, and that too in a dif> 
ferent form of expression from the present note : 
there is no person of the name of George Wat- 
son, with whom he hath any dealing. An- 
other circumstance material to be taKen into 
consideration is the immediate exchanging all 
these efRfcts, without any apparent occasion. 
One banker's note exchanged for another, Mr. 
Hoare's, Mr. alderman Hankey's, Mr. Bras- 
sev's — all of them persons of i;reat credit — 
'\Vhat account can be given, witliout any rea- 
son appearing, why one of these gentlemen's 
notes sliould He exchanged for another, but to 
darken and intricate the affair P 

Add to this the considen&tion of the persons 
concerned : Mr. Hales, a bankrupt not dis- 
charged, employing such agents as 1 have de- 
scribed to you ; himself lurking about in a con- 
cealed manner ; all these circumstances shew 
the man was doing a wicked thing, which 
would not bear the light, nor his appearing in 
it. But what amounts to a demonstration, 
is his directing these agents to take upon them 
feigned names and places, to dress themselves 
in masquerade, and to take notes in the names 
of other persons, who were absolute strangers 
to the transaction. 

As this is evidence of the prisoner's publish- 
ing a fenced note knowingly, it is evidence 
likewise that he forged it : &r, if a person huth 
a forged note in his custody, and takcth such . 
methods to put it off and give it a currency, it [ 
is a strooff proof against him of the forgery it- ; 
self; and properly turns it upon the defendant i 
to give a clear account h<»w he received it, upon ! 
what consideration, and in what way of busi- | 
ness ; more especially in this ca^e, where the 
note is for so great a sum of money, that no- 
body can pretend to be at a loss or under any , 
difficultv to shew how they came by it. 

Gentlemen, when the witnesses shall have 
given you an account of these things upon their 
oatlis, I apprehend there can remain no doubt 
but the charge of forgery against the prisoner ; 
is just, and thu prosecution necessary. 

Call Philip Booth. [Who was sworn.] 

Solicitor General, (Hon. Mr. Talbot,) Mr. 
Booth, do yon know the prisoner at the bar, 
Mr. Hales r — Booth. Yes, Sir, I do know him. 

Sol. Gen. How long haTe you been ac- 
quainted with him ? 

Booth. Ercr since the year 1709. 



Trial of WiUiam Hales, 



[17i 



SoL Gen. Can you remember the time— bow 
was he brought up at that timeP 

Booth. I remember him at the shop of sir 
Stephen Evance several years before thw 
failure. 

SoL Gen. Do you remember any thing of t 
franked letter ? 

Booth. About a year and a half ago be eisi 
to me, desiring me (Mr. Gibson being a men* 
her of parliament, and his other friends out if 
town), that I would do him the favour to give 
him two franks. He brought two sheets ti 
paper; I desired Mr. Gibson to frank tboii 
who wrote on them, To Robert Booth, o^ 
Bristol. Free Tho. Gibson. 

Sol. Gen. How did he write his name P 

Booth. Tho. Gibson. 

Sol. Gen. What did you do with them P 

Booth. I gave them to Mr. WiUiam Halc& 

Sol. Gen. Sir, look on that note. Are tm 
acquainted with the hand of Mr. Gibson P ISee 
whether you take any part of the note to beef 
his hand-writing ? — ^Booth, The name is his. 

Sol. Gen. Is there any other part of the noil 
which vou take to be his hand- writing ? 

Booth, The F I take to be part of the wori 
< Free'— the F 1 take to be Mr. Gibson's band- 
writing. 

Sol. Gen. What is the r ? Look carefully 
upon it. 

Booth. The r may be Mr. Gibson's ; bat the 
seemeth to be crowded in between the JPni 
ther. 

Sol. Gen. Do they seem to be of the WM 
hand, or of a different one? 

Booth. Crowded in irregularly. 

Sol. Gen. Are they of the same ink P 

Booth. I take them to be of a different ink. 
The r is his letter; but I take it there is boom 
alteration : here is a plain rasure, where the 
letters * my' are written. 

Sol, Gen. What distance from the rP 

Booth. The rasure is probably where the 
two c's stood. 

Sol. Gen. The * mv,'and the word following, 
do vou take them to be Mr. Gibson's writing? 

booth. No, Sir. 

Sol. Gen. Take notice of the fold. 

Booth. This seems to be the fold of a letter. 

Sol. Gen. If you take that to be the fold of a 
letter ; Is that the usual place for the folding 
of a letter? 

Booth. There must be some alteration on the 
left-hand corner. 

Sol. Gen. Make your own oliservations. 
Look on the top of it ; doth that seem the fold 
of the paper as at first, or cut or torn off from 
any other paper ? 

"booth. I believe it is not the original fold of 
the paper as it is now. 

Sol. Gen. Look on that side next me ; doth 
it seem cut or torn off? 

Booth. Yes, it is not the original selvedge of 
the paper. 

Sol. Gen. Is the original selvedffe of the 
paper in any other part? Is it cut imi or tiM 
original fdredgcP 



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h.th Ml"! II M ■ I / !| 
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von li\r<i «iiU ^It it'iUiui 

tOU NiTii miy itiMi-M III liu 
*«, Sir. 
■ fid roiiiiitoii iiiiiiiii*ii 111 



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175] 2 GEORGE II. 

Soi. Oen. I ask one qaestion more ; did Mr. 
Gibson e?er give franks, witbout writing bins- 
■etf the superscription ? 

Booth. I know not but that sometimes he 



Mr. Strange, I desire he may fold Ktbus,(pro- 
4meing a sheet of paper whieli he bad folded.) 
This half sheet as large as yuu can: — Soppose 
yov see where the name Thomas Gibson is 
wrote, I enquire whether, when the direction 
iras o?er it, there was room to tear off soch a 
paper as this, (shewing the note) and hare none 
of the direction? You see the distance from 
Free Thomas Gibson to the top of the paper; 
was the (biding so large, that there might be 
the direction torn offhand jet this (the note) 
remain? 

Booth, Am I remember, it was a rerj larcre 
sheet of paper, and ?erj largely fblded. This 
I remember the more particularly, because 
Mr. Hales hath endeaTonred the same thing 
•ince, and I have some of them by me. I be- 
tiere the paper was large enough that there 
might be the direction torn off. 

Sol, Oen, Pray, will you k)ok where Mr. 
Gibson's name is wrote, and tell me whether 
jou apprehend that end is torn or cot T 

Booth. This was the torn end, and the other 
answers exactly. 

Mr. Robert Booth called and sworn. 

AU, Gen, Sir, hare you ewer had any letter 
kj tlie post from Mr. William Bales? 

B. Booth. No, Sir ; I nerer bad any letter 
from him by the general post. 

4tt, Gen. Can you recollect that yon erer 
bad a letter from any body, franked with the 
name of Thomas Gilison ? 

K. Booth, 1 never had, I am positively sure 
•fthat. ^ 

Att, Gen, Do you live at Bristol ? 

fi. Booth. Yes* Sir. 

Att, Gen, Do you know of any other per- 
son there of your name? 

R, Booth. None at all. 

Att. Gen. Pray, had you ever any letter 
from Kr. Hales, either franked or otherwise? 

R, Booth, No, nor ever any correspondence 
with him. 

TTumuu Rumtey called and s«vom. 

The Note proposed to be read, and read ac- 
cordingly. 

" Augusl 97, 1738. 
** I promise to pay to George Watson, esq. 
er kearer, the sum of' six tJiousaod Ibifr luin- 
tiscd poiMidsi at demand, the tike Talus re- 
cs^ved. For myself and partnecs, 

" Tho. Gubsom.*' 

'' «£. 6,400 



Then the Note was banded about smongst 
Aeiwy. 

Att. Gen. Now, mitlemen, it is proper Ibr 
ymt lotake noliee of 9ie obser? ations thst bm? e 
»»sa asaiekj the whiiissis vpdii the lypstr- 



Trid of WUliam Hales, 

ance and ?iew of the note, the sixe and 
of the pa|>er, tlie rasore, the differenc*! 
ink, the letter o in the word * For,' ; 
other letters. I desire that you will hx 
and judge whether the side of the pap 
to the name halli been lorn off from sot 
else, or is as it was originally. We i 
the next place, shew the use that iras i 
thisnote.— — Mr. RumseT, do you ko 
defenilaot, William Hales r 

Rurnsfy. Yrs, Sir. 

Att, Gen. How long have you know 

Rumuy. 1 knew him above a twelve 
agone. 

Att. Gen. Did you see him at all 
temher last ?— JlamMy. Yes, Sir. 

Att, Gen, What trade or business i 
of yourself? 

jRifmsey. I have been at sea ever si; 
years of age, except when in harbour. 

Att, Gen. Well, Sir.; What time n 
Sefvtember that you saw Mr. Hales, ani 
business did he employ yon in ? 

Rumw, I saw him every day. 

Att, Oen, Did you see him Septem 
7th?— Hamiey. Yes, Sir. 

Att. Gen. What day of the week wa 

Runuey. Satnrday. 

Att. Gen, What did he say fo you ? 

Rumtetf, He bid me go into the city, 
dress me in tliese clothes. 

Att, Gen, What okttbes had you on I 

Runuey, A lightish-coloured coat, 
red waisiooat and oreeches. 

Ait, Oen, Did be say any thing aboi 
bat? 

Rumtey, When he spoke to me to 
the city with him, I had then a laced hi 
new hat, with a broad open lace. 

Att, Gen, What did he say to yon ab 

Rumtey, He told me, he had re 
should wear a plain one, and asked if 
one : I told him, No : be then desired 
take his own. 

Att, Gen. What time of the day wa 

Rumtey, About four or five in the afti 
as near as I can guess. • 

Att, Gen, Did he tell you on what fc 
you were to go into the city ? 

Rutnsey, No, Sir. 

Att, Uen. Whence did you set out P 

Rumsey, From his own bouse in 
street, Westminster. 

Att, Gen, When you came into the 
did you do any thing there ? 

Rumsey. He went into a shop, and 
me a pocket book. [Produces the j 
book.] 

Att. Gen, Let us see it. When y 
bouglit that, where did you go afierwai 

Runuey, To Holborn, to a place whe 
sell perukes. 

Alt. Gen, Was it Middle Row ? 

Runuey, I believe it might be ; but ' 
was there before. 

Att, Gen, Did he Idl yoo be woild ] 
joa wilk one ?— Ruiaify. Yes, 8jr« 
4 



Jot a Mitdemeanor. 

IBh. Wlikt sor of one was it f 

a I bnve it ID my pocket. fPulls 
-cnloutrd perake.l 
Gn. Fut it uD i I do not obsecre that 
V d«w a dark peruke. Diil yuu use lo 

M. No, Sir. 

. Cm. \V tut peruke had you oa before, 

l*a»(li! vuu ctiBU^;!^ it f 

m». I'hia, Sir, tiiat I bare here. [A 

gtlMrad ptruke,] 

, 6<H. After be had SHetl you wilU a pe- 

rtUier did lie carry ynu ? 

Mt^ T« Joka'B culfee-hauKin Sfaire- 

m dk) Mai tell roe whitlier we wer« go- 
irl«r«bat. 

Or». Wtaftl ka|ipeoed liicre ? 
HBf. We went iam ■ back room, and 
kattd ink liruught us. Immediately a 

Cn. Did the porter speak lo you ? 
Hnr. No; lieaibed (he porter, ir lie 
Im? Ueuid, Ye«. The porter pro- 
■ ItUer VtirecteJ to me, aiid ke bid lue 

Co. What did you find !n i( ? 
-y. I I'ooud a Dole fur 0,400'. payable 
* WataoD, eiq. or bearer. 

LAuk on that ; tell us wlielber 
_'. U lobe the note? 
^ Yea, Sir ; I taku that lo be the 
R (lie bMt of a>y knowledge. 

What else did you find in Ihe 

[ I Foand writlen, ■' Lady liarnot 
'- air JolinlfyiideCiitlon3,100;. 

^iVliere wax it written ? 
ntkebodyol'lbeleuer. 
Was there any thing written to 

I remember only these 

i Cm. What did he order tou to write 

mg. " Jaum Moreton, or bearer." 

r Oim. Ai\er he bad bid you write this 

what illil be do with ihe paper ? 

tftjf. Tore ihew names off. 

. GtM- What dill be do with the rest of 

tmt—Rm<*ty. I know noi. 

lOtm. WhoihehadlornnlTthesenaniea, 

•rwkk ohai you had adileil, what did 

mji' lleptUHiD the pocket-book, with 
Ir U 0,400/. and a 40/. uoIb and two 
MeL Ha lh«u ordered me lo ^o to Mr. 
Mrf Mtock'a »hnp, lo g;ive tbem the -lOl. 
Hi tb* two othiT notei, and to take their 
lanbW lo JamcB Mareton, or bearer. 
Gra. For what auru ? 



m, Itn* to tdl thcmlbatheliredatthe 
■H tf &<nd>«treet ; but I nerer knew 
~ ' ad me to il««irti for the 6,400/. 
■ At *^iOOi< y»>>bl« lu lady 



A. D. 1728. 



on 



Harriot Elliolt, and 9,IOOI. payable la lir Jobiu 
Hynde Cottou, or bearer. ,L 

All. Cai. What furtberdirectioDS did ii«g 
give you ? 

Kumtet/. If my name was asked, be bid mi\ 
lay that it was Tboma-f Fowltr, or any otherjj 
it was an initiffereni tbioj,', and I mignt n . 
use of any name but my own. He had be«t ] 
so »ery kind to me, and I had so gDod »i 
nion tliBt he designed no ill, that 1 readily iJ 
as he ordered me. 

AU, Gen, After he had given you 1 
pocket-book with these notes and iosiruction^ J 
wbitber did von go? 

Runucu. To Mr. Snow and Pollock's. 

Atl.Cltn. Wbitber did Mr. Hales go ? 

Ruriaey. A liitle way to shew me the houw^^ 

Alt . Oat. WbRt happened ut ibis sbop i 

Ruinuu, I asked for ibeir note for the sma^ 
notes, wliich they readily gave me. 1 ^''^Bj 
produced llie other note, and desired thnTa^ 
notes i the gentleman said, he did no 
accept it, because it waanolallof Slr.Gibaon't.J 
own h and- w riling. 

Att.Ccn. Didhe mention any other re 

Rumicy. 1 remember not. 

Atl.Gm. Dill be ask your name ? 

Aumcy. I think he did, and I told him Tbo-^ 

Att, Gtn. Did any thing further happes 1 
there ? — Rumiei/, No, Sir. 

Att.Oen. What did you do then ? 

Ramsey. I went back ; Mr. Hales met n 
a little way off, on that sideof Temple-bar nej 
tbe shop. 

All. Gen, Had be appointed to meet yoivJ 
there? — Rttnary. No, 8ir, j 

Alt. Gen. VVasit within TiewoftbeshopF 1 

Rumtfy. Yes, Sir. 

All. Gen. What did you say to lii 
you enme back ? 

Rumaci/. He Baked me what I had got, aoj^ 
1 told bim ; then we went back to John's cof^V 
fee-huuse, where I Ka«ehim the note; helheoT 
bid me write, air Richard GtosTcnor, instead oC J 
lady Harriot Elliott. 

.il((. Gen. On ihesamepaper.or anotherF ; 

Rumsev. 1 cannot say. 

All. Gen. Did be bid you strike 
name. "Lady Harriot Elliott ?" 

Runisn. No ; but write on a plain paper, J 
"To sir Richard Orosvenur 4.300/. Tn!" ' 
Hynde Cotton 3,100/. pay^ible lo tlicm or|| 

Alt. Gen. A^er ibia, what further directioia ~] 
did hegiTeyou ? 

Ituiiiset/. HeorderedmetogotoMr. Boare^J 
in Fleet-street ; be went opposite to tbe shop, J 
and shewed me ibe sbop. J 

Alt. Gea. What time of the aRemoon wU^ 
it? — Rumtty. A little before it was dark. 

Att.Gen. What o'clock? 

Rumiey. Half an hour or three ((uarlers 
fore it was dark. 

Alt. Gea. What instructions did be gita 
you la observe at that sbop ? 

Rumtey. To retxive fur ihia nola their uatM 

^ A 



179] 2 GEORGE 11. 

for 4,300/. to sir Richard GroB?eiior, and 2,100/L 
to sir John Hynde CottOD, payable to them or 
to the bearers. 

Att, Ccn, Did he give yoa directioils about 
taking any other note ? 

Rumsey, I have a notion of some other note, 
but I cannot say positively what it was, but it 
did not exceed 70/. 

Att, Gen. Did he gire yoa any thing In 
notes or cash P 

Runuey. Much the same as before. 

Att. Gen. You say you had a note fironH 
Mr. Poltock; did S(r. Hales return that to 
you? 

Rutnsey. I cannot say positifely ; but it was 
that, or some other notes, not exceedini; 70^ 

Att. Gen, Did he give you any directions 
as to your own name ? 

Rumsey, The same as before, Thomas 
Fowler. 

Att. Gen, When yon went to this shop, 
what peruke haid you on ? 

Rumtey. The dark one, and the other ilk my 
pocket 

^Att, Gen, What passed at Mr, Hoare's 
BnopP 

Rumscy. I received their ngtes, one fbr 
4,300/. payable to sir Richard GrosTcnor Or 
bearer, the other for S.lOOl. payable to i^ 
John Hyndc Cotton or liearer. 

•Att. Geri. What did\oo give for them P 

Rumsev. The note of 6,400/. 

Att, Oen. What fbr the smaller noteP 

BMtM€u. I cannot tell. 

Att, Gen, For what sum wa» that f 

Rumtey, 1 remember not, but it did not ex- 
ceed 70/. 

Att, Gen, Where did you find Mr. Hales? 

Rumsfy. He told me be would wait for me 
at a fruil- stall at the end of a court about six 
doors further. 1 went thilhcr, and delivered 
the notes. 

Att, Gen, Did yon deliver him the notes at 
the fruit- sUll ? 

Rumsey. 1 cannot be positive whether there, 
or nt the coffee-house. 

Att, Gen. Do you know the court where 
the fruit-stall wasr Was it Mitre-conrt? 

Rumtey. i know not, not being acquainted 
Vfhh the town. 

Att. Gen, How far from Mr. Hoare's ? 

Rumt^, About six doors. 

Att, Gen, When you gave him the notes, 
did yoa deliter them with the pocket-book, or 
without? — Rumtey. Pocket-book and all. 

Att, Gen, Where did you go afterwards ? 

Rumtey. He took a coach, and bid the 
coachman driye to the Royal- Exchange. 

Att. Gen. Whither dia he go when he came' 
there? 

Rumtey. He went out of the coach, went a 
little way with me to Janeway's coffee- hobae, 
called for pen, ink, and paper, and bid itfe 
write •« 1,200/. 1,100/. 1,060/. 1,000/. to Sar 
muel Palmer or bearer." 

Att. Gen. WhatiostmcfioAfdidhe^teytfli 
ftbottt Suanel Palmer ? 



Trial of William Hales, 

Rumtey. To say that lie lived in A 
street, in Goodman's fields. 

Att. Gen, After you had done thia, v 
did you go next ? 

Rumtey, Next he carried me to Mr. 
ward's, a banker in Exchange- alley. . 
then dark. He bid roe desire their nc 
these sums, payable to Samuel Pale 
bearer, in lieu of the 4,S00/. note i 
Hoare's. 

Att, Gen. Wtiat happened there ? 

Rumt^. They said they could not dc 

Att. Gen, Where did you go next ? 

Rumtey, I went to him, who was cl 
the door. He took me to Mr. Brassey' 
me desire their notes for the same sum, 
of Mr. Hoare's note payable to sir h 
Grosvenor. They gave me tlie notes 
asked me, what Mr. Palmer it was? 
that he lived in Muusel- street, Good 
fields. 

Att. Gen. Did you say any thing fur 
hhn? 

Rumtey. I think not ; if I did, it wai 
Mr. Hales directed me. 

Att. Gen. Did they ask your name ? 

Rumtey. I am not positive; if they 
told tliem as elsewhere, Thomas Fowler 

Att. Gen, Whither did you carrAr ihe 

Rumtey. I carried them to Mr. Hates 

Att. Gen, Where was he? 

Runitey. He was by a shop at the cc 
a court ; he was in the court, and came 
there. This was a little beyond Mr. 
door. He bid me ask the price of 8oi 
bonds, and ask them, whether they coi 
1,000/. worth by Monday inornmg? 
said, (hey buiicve<l they could. We the 
to Jaueway's coffee- house. 

Att, Gcii. Wlint did he then ? 

Rumsey. He caHed for something, [ 
it, went to Stocks -market, theucc took 
and went home. 

Att. Gen, Where did you go? D! 
leave him there ? 

Rumt^. No, J supped with him. 

Att. Gen. Did he make any fuither a 
meat with you ? 

Rumtey. He bid me be ready on 3 
morning in the same clothes. 

Sol. Gen. Where were you ? 

Rumtey. I was at his house; he 
me there. 

Sol. Gen, Did any thing else hapj 
Saturday f^^Ruttucy. No, Sir. 

Sol. Gen. Were you to put on^ the sa 
and |»eruke ? 

Rumtey, Yes, Sir ; and he ordered tl 
to comb and powder it. 

Sol. Gen. On Monday morning dU ; 
as directed ? 

- Rumtey. Yes, and lie then told out 
broad pieces and ten guineas. 

Sol, Gen. Those notes that you recc 
Mr. Brassey's, do you koow the dale ol 

Rumtey. Yea. &i Monday moaiin 



%\gl 



Jir a MkitMtoMir, 



[I8» 



.11 

SI 
t1 



•AU \\^ bad the nine wig on, I be- t 
i^Iajfkknnrlriin. 

Af^iUiiir. Let him pot the wig on. 
ftBW Mii M the ilaik wig.) 
1£l ro, I mily beUe?e that that is the 
MpHilliMgh I never nw him before 
mwt. fle WM a good genteel yonng man, 
rikiMwif. 

alUfiff. What clothes had he on ? 
i I cannot directljr tay.'not kaovring. 
MXa, Now we are going to Mr. Hoarc'a 

Hr. Iwmtr called and ■worn. 

' JKfim. Mr. Turner, look on that paper ; 
JfcfljMKeitfirat? 
flnr. On Saturday erening, September 

KGn. Pkay.can yon recollect with your* 
Wife it was that brought it you ? 

Imr. Sir, 1 did not see Mr. Ramsey 
L^b CBBie into the shop first. 

r 1: 'Bkhaari Hoart called and iwom. 

Ga. Hr. Richard Hoare, pray tell us 

lyin saw that bill first? 

■ra On the 7lh of September last, about 

[Abek in the evening. That gentleman (as 

' k) produced Mr. Snow's note, and a 

Hie of 95/. for which I gave him onr 

iftr 70^ After which he produced this 

[Mrf Mr. Gibson's hand, and another paper, 

" '\ oar notes for that sum. I had not 

Jai; m the business, and not knowing 

D*s band -writing, called Mr. Turner 

thai afiair, after 1 had given the 70/1 

^Noteread: 

ir Richard Gmsvenor, bart. 4,300/. 
frJohn Hynde Cotton, 3.100/. 

ftGfli. Whose hand -writing is this P 
It is mine. Sir. 



L**»f 



At GeiL Do you remember what ^ou did 
Mlhitoote, or where you delivered it? 



(jr. At Mr. Hoare's. 
> itL Cm. Mr. Turner, will yon give us an 
^m what waa done upon the producing 

' 3Wr. BIr. Hoare sent for me. F think 
^hj npon the counter both the note Mr. 
Wy brought for 6|400/. and this little di- 
^jn. I made these notes pavahle accord- 
%ki knowing that sir John Hynde Cotton 
tfhmess at Mr. Hoare's shop. 

AlG;a. Doth he? 

Tvwr. Yes, Sir, he freqaently doth. 

flU. Crn. Produce the three notes given at 
v.lhtre'sshop. 

Ttner. These are the notes (producing the 

1^ wbich I gave in exchange for Mr. Gib- 

1 Ml sole, and the 70/. note Mr. Hoare wrote, 

*i|l signed them, and gave them to Mr. 

^ uM. Tou aay, these are the notes that 
^pve in ezcbattffe for that note ; do you 
^ what became of that bill afterwanb? 



/ 



A.D. 17M 



Turner, After that T had delivered thi 
notes, I had thia note (Mr.Gibson's 6,400/. note) 
in exchange, brought into Mr. Hoare's cash, in 
lieu of the other. 

Sol, Gen. Did you send it out ? 

Turner. Yes, ut>on Monday morning. 

Sol. Gen. Will you give us an account what 
was done upon tliis ? 

Turner, 1 know nothing farther. 

Sol. Gen. These notes which you have pro- 
duced, can you give an account what became 
of them, or when they were brought back t# 
Mr. Hoare's ? 

Turner. I did nothing farther about them. 

The Notes read : 

" I promise to pay sir John Hynde CotlOB, 
or bearer, two thousand one hundred pounds, 
on demand, for Mess. Benjamin and Henry 
Hoare and partner* Wiluam Turner." 

" Septemher 7, 1798. 
<< I promise to pay to sir Richard Grosvenor, 
or bearer, four thousand three hundred ponnda, 
on demand, for Mess. Benjamin and Henry 
Hoare and partner. Wiluam Turner." 

" September 7, 17«8, 
*' I promise to pay James Moreton, esq. or 
bearer, seventy pounds, on demand, for lleii. 
Benjamin and Heniy Hoare and partner. 

«« William Turner.** 

Mr. George Lee called and sworn. 

So!. Gen. Where is it that yon live ? 

Lee. At Mr. Brassey's in Lombard - street F 

Sol. Gen. Did you ever see that note before f 
(Mr. Hoare's note for A,300L)^Lee. Yes, Sir. 

Soi Gen. Upon what occasion or when was 
it? 

Lee. It was on Saturday Sept. 7th brouglit 
by Mr. Rumsey to Mr. Brassey's in Lombard* 
street, near seven o'clock in the evening. 

Si)L Gen. What passed upon it ? 

J^e, Bcingf brought there by him, he pulled 
a paper out of his pocket, desiring four notes 
payable to Samuel Palmer. I have three of 
them by me, and an account of the other. One 
was for l,'20O/. two for 1,000/. each, the other 
for 1,100/. 

Sol. Gen. What dki you give him them in 
exchange for F 

Lee. Mr. Hoare's note for 4,300/. 

Sal, Gen, Did you ask who Palmer was? 

Lee. He told me that he lived in Msnsel* 
street, in G(M>dman'8- fields. 1 asked him, whe- 
ther be was a merchant ? He said, that he could 
not tell. We had a person dealt with us before 
of that name. I asKed, whether it was he? 
He said, that he could not tell. 1 enquire<l at 
Woodward's, where Mr. Hoare doth business; 
they said tl.at there had been a person there of 
the same name. I iHftrari to suspect some- 
thing. I then went to Mr. Hoare's, to inquire 
whether it was their note ; they ner|iiaintf.fi me 
that it was, and showed me M.. Gihson's. I 
said that 1 believed the name was IMr. Gibson's 
haudi but not the body of the iiolc. 



m} 



2 GEORGE II. 



Trial of WiOiam Halest 



[188 



SoL Got. lliis iransaotioa wm oa the 8a- 
tuc4ftyf8a||t. fib ; bow came 4iie bills to be 
dated! tbe Mb r 

JLcf. Our acGOunta were balanced for that 
day, it bein^^rjate in the er^ng; therefore 
they were dated the 1Kb. 

Sai.G£u, What beoame of them afterwarda? 

Lee. They came back afl^ain : tvo of them 
came the sasie da^, Ibe otber the next •moro- 

Sol. Gem. Who brougiftt them P 

Let, The mobt of the mooey -was fiaid to 
Mr. Hals the broker; there was 650/. paid to a 
perioo who bron^t one of the ooies in the 
morning; I believe that it was about ten 
o'clock. We asked him his name ; he said, 
it was John Roberta. He wanted to have 650/. 
to be wrote off from mie of the notes, and want- 
ed the mOD^ for it. As 1 bad aome reason to 
suspect on toe Saturday night, and he coming 
80 soon on the IMonday morninir, I asked him 
whom he came from 7 He sail. Mr. Mansel. 
I hesitating, he said, the gentleman that it was 
to ; I said, Palmer ; lie said, Pakaer in Man- 
eel atreet. I did not know but that there 
might be some demur on Mr, Hoare*s note ; 
then^Mie, to protract time, I told him that he 
might receive the money at the Bank. 1 gave 
hia Bank-notes: 

No. 11, payable to Mr. flankey, 100/. 

106, payable to Mr. Collett, 50/. 

131, pay able to Mr. Charles Shales 500/. 
Which together made up 650/. 

Sol. Gen. Yon wrote off, 650/. Did yon 
ddiv^ the note, when indorsed, to the person 
that brought it? — Lee, Yes, Sir. 

SoL Gen, This was a 1,900/. note; How 
was the oilier 500/. paid ? 

Lee, The other part was paid off at several 
pajnments to Mr. Hals. 

SoL Gen, As you have given an account of 
that note, can yon give an account of the 
other? 

Lee, Two to Mr. Hals, Sir, at several pay- 
ments. 

Sol, Gen, How much was each for ? 

Lee. A thousand pounds. 

SoL Gen, Well then, of these notes two for 
1,000/. each have lieen paid ; Hath the 1,100/. 
note been paid ? 

Lee, Four hundred and twenty pounds have 
been paid as part uf the 1,100/. and the rest is 
(Hit-standing still. 

Sol, Gen. Do you remember the ibrm of the 
person that came to you by the name of Ro- 
berts P Is that man the peison ? (Pointiog tp 
llcdiert Hall.) 

Lee. Yes, Sir, I believe that is the person. 

Robert Hall called and sworn. 

SoL Gen. Mr. Hall, pray what trade are yon 
^'f^HiilL Ataylor,Sir. 
SitL Gen. Did you evor work fur Mr. Hales? 
lialL Yes, Sir, several years. 
S(d. Gen. Do vou know^him .* 
mn. Yes, vflfy well, l^r. 



Sol, Gen, Had yon anr coBversBtion wkk 

him in September last ?-- nalL Yes, Sir. 

Sol. Gen. Did he send fbc yon ? 

HalL He sent his tbotman for me, Septem- 
ber 8th, Sunday night. 

SoL Gen, What message did the fbotmaB 
bring vou ? 

Hall. He came and knocked at the door; 
m^ wife opened the door. He desired to wpetk 
with me ; she said that I waa in bed. He 
came up, opened the cmrtain, told me he baA a 
message for me, I must be with his master if 
nine o'clock on Monday morning at lioydli 
coffee-house in Lombard- street; fsaid, that I 
must be with Mr. Rumsey at that time to tahf 
orders for clothes ; he told me, that I should mctt 
Rumsey there. I went to Lloyd's, and waUwl 
in the coffee-room. Whilst I was there, tberd 
came up one Leigh, who asked me what busi- 
ness 1 came about? I said, That 1 couM not 
tell, but waited for 'squire Hales. I asked him 
what his business was ? He said, that he bad a 
letter to meet him there. I drank aom^hing 
there before Mr. Hales came, which was the 
best |)art of an hour. He first mentioned 
aomething to Leigh ; he then asked me to stay 
one half hour more. Accordingly I sat down. 
He talked awhile with Leigh. When Leigb 
was dismissed (whither 1 cannot tell) he took 
me up. In the passogu he gave me a note, and 
desired me to go to Mr. Brasscy's, and receive 
650/. upon that note. 

SoL ben. What note was it ? 

HalL About 1,200/. 

Sol Gen. Whai dirfctions did he give youf 

Hall. He told hip to go tu Mi . Brassey 's the 
banker, at the Acorn ; he told me t«i receive 
650/. on til is note ; he told me to mind that 
there was no mistake. If (said he) they offer 
to pay you silver, give them halt' a crown to 
pay it you in gold. He told me tliot 019 gui- 
neas and one sliillinar would make just 650/. I 
took these notes (the Daiik-nutes he received at 
Mr. Brassey's:) he looked them over, and 
said that it was all very right. 

SoL Gen, Look on that paper : did you ever 
see that paper before? Is thattiie note that 
you delivered lo Mr. Brassey ? 

HalL Yes, Sir. 

SoL Gen, You say, that yon had instrnc- 
tions to receive it in gold : ifid they pay it in 

Hall. No, Sir, three Bank-notes. 

Sol, Gen. What was the amount of them? 

Hull. Six hundred and fifty pounds. 

Sol Geti, What did ^\oii do with them? 

Hall, I gave them to Mr. Hales. 

Sol, Gen. Did they wrire imon the notef. 

Hull. Yes, the\ discounttii this 050/. 

Sol. Gen, When sent by 2^1 r. Hales, had yo« 
instructions what nanif \ou should go by ? 

HalL Yes, John Rubvitst. 

£('/. Om. or what place ? 

Hall The Huy- market, or any place wheM 
I pleascfl that way ? 

Sol, Gen. Did you aee him whik yoa werri 
in the shop? 




I .'.!.' pas«a)^inL|njd'«coffee-li<Mse. 

Minefiank-iiate&roL' 6Ml. wliicb 

I it> JHr. iUlet. m you ewet te« 

ilterwardar— Ho//. YeB.Sir. 

.^(in- li|>OD whotoecaiiiun ? 

B*II. lie laid me, ttint il' 1 wntiM lake a 

inll ada ihn piazu by ihe Unyal Exchange, 

kvsU noir tu till'. Aceoiilmgly lie came 

k at, and al the vuflee-house (JanewHy's 

Mbbaoan) Ka*e air tbem agnin- He askifd 

m, wfafbsr f wBi <>ver at the Bniik ? I luld 

iBtallAll ludbMi>wilhitiit,buln»crrecmeil 

Snaary tfaerc for myselt' or an; boily gIk. 
W ■> sn wil receive Uiia in gnli), ur il' I 
ifeaU b« ollcnid Bilrer, tu ilu ua dif ecieil before. 
Stt, Orm WhU were you to do with Itf 
11^ Tn iiriag; it lo him at lliis cuHet^liouse 

Did yon go to the Banb ? 

< II I to iiue there ; be bid me go to 
' mail, and be would sign my 
■ In him, lie signol tiieill ; I llieu 

. ilie sanie perjon, who ]istd me 



U. 



er« Iber the strme tills which 
aiMr. Drasscy's? 



Uid yon r 

In ^tjM. 


■oeire it iu gold or 
liim wtica yuu were 




lorihclEtlcranhom 


JulUc'inLe 


ny notice of you ? 



Sif Nk.! .. 

MAOtm. Auryouorhim? 

.&IL N«i beiiiit buKy reiieiitiaK the money. 

& Cf. If « Mw you. did iwt he 1 

tLOi*. What did yondo with it^ 

BtlL I Mok it at Ihc Rank.- Ai I was 

'B(iK>ri'r''"Hltey, Mr. Williani Hales 
•<a aakdioit bv Ibe utlEV, we tiirutd into a 
■^-1 (Ibc 'iii'.U.- and »M:e|itre tavern) ; he 
(.vjjf drjnrr, ia<i called for an half ^ot 
' - ' - die money, he counted 

> < ynu any reason why 

.. , -.I, you were a longtime 

id. OtiL l>id b« offer you any thmg tor 
fwpa«>.> 

BtU. Vm hut 1 aaid iWt I would have 
MtMf fram a K'nllcmau that I had serveil ko 
^(- lleiH>l,ill wauldcallun him the next 
*;, be wnalJ lend tne 101. and I ihould work 
!■«. 

U. da. Wby did you |f9 by the name of 

Ki*wvr 
£Ui- I tkM^ I iH(bl 4a a*/ Uiiog for 



Mr. Ronkfy called and awom. 

Sol. Gen. Mr. iTankey, will yon siFe sn ac- 

lUBt wbeihei' any bill* were brought Id you, 

hat they were, and by whom brought? 

Jfankey. Mr. RuiMey (this gefltltunsn here) 

ime lo me od Monday mor Aing, 8eplciabe* 

the 9lh, »iih two notes, tor which I gate bim 

myoolps, payable to Satinid Palmer dr benier, 

one fir 1,100(. Ibe olberTor 1,0^. wlliuh whh 

£0'. amounied to Mr. Hoare's notea or S.IOOI. 

Bod'TOi. 

Sol, Gen. Did you hsIi htm His name? 
BaHkey. No ; but I ashed htm who KotlttKl 
Palmer was, because we had a geiilleman 0^ 
ihal namelbat had a drawing account with as, 
and I thought that tMs was (o be pnt to hia 
DCOouDt ; but he (old me, that it was a gen- 
tleiDan in Maosel-ftreet in Ooodinau's-fleldv, 
When he had done his business, he went out of 
Ihe shop. He brought a liRle bit of paper, 
wherein was written ti) go to alderman Han- 
key's and gMIhe two DoiCB figured down 1, |00/. 
1D5I)'. and 90f. in money, 

Sol. Gen. You have looked on Rumsey ; \» 
thM Ihe very man ? 

Hankey. Yes. Sir; I was witli him, when, 
having b«en apprehended at the Bank, be wW 

Sol. Gen. Do you remember any ibfny of 
one Lane's feKhmg any money ? 

Hankey. If you wilt favour me whh the 
notes, I can tell the Itetler. The I.KIU/. n<yi« 
was hardly dry, when he sent a purtcr-ttiM 
fellow, who came to a servant of ours, atnttfr. 
sired that he would indorse 5502. nnd give it 
liim in guineas ; he did it ; he had i>, and 
Went mitof (heahop. I believe ihat it wssnot 
an hour before Ihe same person came n^ain, 
an4 said thai Mr. Palmer bevfged pardua fer 
giving ns sDrh trouble, he did Doi kmvlr he 
bhould so snoB liave occasion fur it, desired that 
we would give hint tlie renraiuder hi Bunk. I 
aaid, that we Imd not just the sum i» Bank, 
but I would give it him In money; he said, 
then be must go and fetch a bag. Tfe went 
accordiirgly, and fetched a ba^. We asked iris 
name ; b« said, that it was Samtiel Lane, and- 
that he lived in MarlDe-s']unre, I gave him 
523 guineas and an half, and 6i. Qd, which 
ciiRipkled thai nnte. .As to the other note, it 
had not been writien long, but a servanl lo Mr. 
Hals, or be himself, came and desired that £ 
would give him ■ nnte fur 853/. 14i- 3d. p«y- 
oble to liim. 1 indorsed it, and gave bim a 
uole for the sum that he would liave. 

SU. Gen. There are three notes that com- 
pleie the sum of i,oW. Do you remember 
my Bank-bills T 

Uunk^. I paid none at at). 

S(ri. Ocn. Do yon know any lldiigr of Mi« 
rflMdoe bein^ paid '! Give an accoaal what 

Huitk*!/. I'he remainder was ihns )iaid; 
l,lWf,wiui|«idtaSiuuuelLaae; l,o^ttf,b]ri» 



191] 



S GEORGE n. 



Trial tfWmiamHulet, 



[19 



doiwmeDt for Snnael Palmer, fi>r whicb the 
person had a note payable to Mr. Joho Hals 
for the same sum ; for the reroaioder of that 
note, two notes were given, payable to James 
Hickman. 

Sol. Gen. Were you present at the Bank, Sir, 
when Mr. Hales and Mr. Ramsey wens seised ? 
' Uankey. No; but I waa there, Sir, when 
he waa examined. 



Mr. Benjamin Cole called and sworn. 

Sol. Cen, Mr. Cole, do yoa know Mr. Hals ? 

Cole. I live with him, »r. 

Sol. Gen. Are you his servant, or partner? 

Cole. His servant 

Sol. Gen. Do yoa know any thing of Mr. 
Rumfsey ? 

Cole. On Saturday September 7th, he came 
about seven o'clock to me, and enqnired the 
price of South-sea bonds. He said, that he 
sbonld want a lar^ parcel. I promised to 
get him them as cheap as I could. 

Sol. Gen. What name did he use ? 

Cole. None till Monday the 9ih of Septem- 
ber. I then bought ten South-sea bonds of 
100/. each ; 1 asked him what name they 
abould be wtered in f He said, Samuel Palmer 
in Mansel street, in Goodman's- fields. The 
amount was IfiM. 14f. 4d. for which he gave 
me Mr. Brassey's note for 1,000/. and the rest 
in money. 

Sol. wn. Did you observe the date of that 
note?— Co^. I did not observe the note. 

SoL Gen. Were there any other bonds ? 

Cole. He sud that he should want more. 
This happening when tliere were but few came 
to market, 1 told him I could not procure him 
■0 many as be mentioned. Then he desired as 
many Soutli Sea bonds as I could get, and the 
rest India. I procured four more South Sea 
bonds, and twenty India bonds. He paid me 
a note of Mr. Brassey's for 1,000/. and ano- 
ther note of Mr. Brassey's upon which there 
remained 550/. and one note of Mr. Hankey's 
ftr 1,050/. which made 3,600/. upon which 
Mr. Hals paid him 41/. 2i. 3</. which made 
the balance. 

Sol. Gen. What name did betake? 

Cole. He said that his name waa Thomas 
Fowler, and that he lived with Mr. Pdmer. 

Sol. Gen. Was there an account drawn up ? 

CoU. Yes, Sir, this is the abstract of the ac- 
count* 

Debtor, Samuel Palmer, esq. 

To ten South Sea Bonds - ^. IfOOO 

Interest 3 Months, 75 Days 18 4 4 

Premium 4/. per Cent. - • 40 

CommisiioD ••••- 10 

1,058 14 4 



To twenty India Bondi • - S,000 -0 
Interest 5 Months 9 Days - 35 6 
Premium 4/. 19«. per Cent - 99 

Tjiwnnniiiiiffl »•«»•• lOO 

S|13i § 



To lour South Sea Bonds - - 400 O 

Intemt 3 Months, 75 Days • 7 5 
Premium on ftOOL at 41. per 

Cent. - 8 

Ditto oo SOO/. at 4/. li. per 

Cent. 8 9 

Commission . . . • • 4 



S,558 17 ( 
To Cash paid Thomas Fowler - 41 S : 

9,600 ( 



Per Thomas Fowler, Creditor. 

Sept. 9lh, 1728. 

Bv Brassy's Note .... 1,000 Q 
By Bank Note, No. 123 - - - 25 Q 
By Cash received - . ^ . . 33 14 4 



1,058 14 i 



By Hankey*s Note - . - 
By Brassey's ditto - - - 
By Ditto, Part of 1,200/. - 



. 1,050 

- 1,000 

- 550 

2,600 



i 



For Mr. John Hals, 

Benjamin Cole, jun. 

Sol. Gen. How came you to make it up i 
this manner, since he toid yon that it was ft 
Samuel Palmer? 

Cole. Yes, Sir, he did so ; but we alwij 
mention also the name of the person that comi 
to us. This was the particular of the acoom 

Sol. Gen. Pray, Mr. Cole, do you remembi 
that any body came to enquire for Mr. Romiey 

Cole. There was a person came and aski 
for him by the name of Fowler ; to the best < 
my memory, it was the prisoner at the ba 
He came and asked Mr. Hals, if he had as 
thing to do in South Sea bonds. 

Sol. Gen. Was this Mr. Hales that aski 
him this question ? — Cole, Yes, Sir. 

Then Mr. Lightfoot^ a porter, was calk 
and sworn. 

Sol. Gen. Do you remember. Sir, any tin 
in September last, that you were sent to H 
Hals'»office to inquire for Mr. Thomas Fowlci 

Lishtfoot. Yes, Sir. 

Sol. Gen. When ? 

Lightfoot. September the 9th. 

&J. Gen. What day of the week wu it f 

Lightfooi. Monday. 

Sol. Gen. Who sent you ? 

Lifhtfoot. Mr. William Hales. 

Sol. Gen. Is that the gfentleman ? 

Lightfoot. Yes, Sir. 

5o/. Gen. What was the message that I 
sent you on ? 

Lightfoot. He sent me to inquire lor U 
Thomas Fowler, and to tell him that the ga 
tienum wanted him aa soon as he ooukl di 
patch his businc8S| feo •oont i mm ed i a tety awi 
with m« to him* 



J9S] Jbr a Mitdenueaor. 

U Om. DM you Ma an; boil; at Hab'a 
taHMMrcdlbenamer Shen bim Mr. Rum- 
■j: »sthattb*pn«HF 

Sal. 6<a. Did he come nilh yon ? 
hfktfoot. Yea, Bir, he cbdh: mtb mc di- 
Wlj M the pia^a under the Royal Ex* 

id. Gn. Whom did he dmcC there ? 

iMtMit. Mr. Utie*. 

&i ficB. Yon had knoirn Hr. Ilalei be- 
^t, W you DUL ; 

lifUjaat. Yea, Sir, fur 90 yeara : I knew 
Ua when be iraa partner with lir Siephen 

JW. Gna. And are yon anre that that ma 
te jmwog man that aniwsid to Uie name of 
fa^f— iAjA(/«K. Y«,Sir. 

■r. Btimphr*g$ called and iwom. 

SU. GcM. Let hiiD aee tbe note. Mr. Hum. 
|lnyi^ look upoti that note ; have you aeeo 
iWh Drte b«rnre ? — Rumphrtyi. Yei|Sir. 

ill. Cm. Upon what occasion f 

fi^^Arryi. By diredinn Troni Mr. lloare, 
I WHUorecctTe it September the 9th. 

ttLGen. Wbiiher did you carry Jtr 

^mphrt^t. To Mr. GibMn's hojsEt. Iliii 
■AiBBM bring at home, I led it there, de- 
■idlbBt the money ahould be Icfl vrilL Mr. 
■nskld, one of the tellera at the Bank, to be 
(hMdlben to Mr. Hoare'i account. I went 
ikM ane o'clock to tee if the money iraa left 
Aan; floding that it Trasnot, 1 went to Mr. 
QAHa'a. The caahier wa« at dinner. I got 
aNH ^ for him, and left word that I should 
Whdi in a quarter of an hour. I went to 
IbrHoTal Exchange, where Mr. Htiare met 
■c. fre went to sir. Brauey'i afterwards. 
We itopped ihe payment of the two Bauk- 
BMt, whirh wp found there had been delivered 
aat. I bad l-eeii returoed not abore ten mi- 
■Blca. beliire we had au account that a peraoii 
ni vioiiped with the two nolei. 

Sill Otn, What ia your busineiar 

Haai^Vcy). It ia mv bufineai to go with 
Itr l\-i4re'i, aoiea into the city. 

M. (rra. Wbeo you came the aecood time 
k Mr. Gibwin'a, what anawcr had you ? 

B^mpiitjft. None, but that the cashier waa 
1^ >>! diuner. 

Sol. Gen. Who wh tbe person that you 
left iliF Dole with? 

Eimplirtgi I do not know the geatleman's 
Btae; ihrre weiK three of ihrm there, who 
*ac -^rtauti lo Mr. Gibaon. One of them 
uluri, Blifre it ahould be left? I tliereupan 
iwnl.^Ir. Bromfield, onsof theihe tellera of 
Atfiaak. 

Ur. Cramlingtim called and sworn. 
SU. Gat. Do you remember that you erer 
Ma that note before 1 
Cran'ia^ton. Yea, Air. 
U. (ien. When, and opon what occasion F 
CrtrntiMgln. Ttiia note was bronght to Mr. 
VOL. X\ II. 



A. D. 1726. [lU 

Gibann*s office Sept. 9th by Mr. Hamphrcra, 
an cgcot or out~teller to Mr. Hoarc. ila 
deaireil, that when Mr. Fhilli|u(.Mr. Gibson's 
cashier) came in, lie wonid leore a note or 
money fur the same with Mr. BromfieM It tbe 
Bank. 

SnLGai. WhatbecameofitF 

Cramlington. 1 put it into Mr Phillipa'aseal 
between tbe banisters, for him la see when ha 

Sal. Gfit. Are yon concerned or employed 
for Mr. Gibson about book-keepingr 

Cramihglon. No, Sir. 

Mr. I'hillipi called and sworn. 

All. Gen. Lnok on that note, Sir: Hark 
you CTcr seen it biitbre ? 

FhiUip: Yes, Sir, on Monday tbe 9ih of 
September laat. 1 happened to be at tha 
Bank ; and on my return from thence, which 
waii about twelve o'l^lock, Hr, Ilarwood, one of 
Ihe clerks Id our odicc, lo!d me, that Ur. 
Humphreys (Mr. Hoare's c^rvanl) had been 
therewith a note fur 6,1-00/. and that I not 
beinjr nt home, he hail left it wiin Hr. Cram- 
lingluii, desiriiiic that when 1 returned 1 would . 
leave a money .ticket for it with Mr, BromlieM, 
one of the tellers ol'lho Bank, for Humphreye. 
1 axkcd him, where was the note? Hsaud, 
that it waa' left with Mr. rramlingtoi). I 
opened my seat door, and saw tbe'.noie there. 
I was very much surprised, it being wrote by 
a straD^e hand; and hnnwiug,by many ypsn 
experience, Ibnt Air. Gibson never signed any 
promissory nutes without writing the wbofe 
notes. I observed a difference in the note, that 
(he last words, " For myself and [lartnera," 
were wrote with a nearer resemblance to hi* 
hand ihau the other pLirt of the note. I ob- 
served that this note was dated the STth of 
Anguht, and that he went to tbe Bath uii ihe 
astb : 1 hod ihc honour lo ntltnd him several 
days. He concluded his businfiis relvUnK la 
the office on the 3Glh : On the !)7lh be did 
nolbinij^of that business, but prettared for hii 
janmey. I endeavoureil to recnllect, whether 
lie hud any transaclions then with any George 
Watson, towliom itwasmadepayuljlc. I could 
not remember thai he hiid, nar did I remember 
that t liad ever before heard of Ihe name, nor 
liad I any directions from any of my masters, 
that there was any such note stood out. I ob- 
served also Ihat there was a diflerencc between 
Ihe stile of this note and Mr. Gibsnn's; Ha 
always writetl), in n strniglil lioe, " For my- 
si-lf ttoil Co. Tfiii. Gibson," never " Partners." 
And then aatulhe "value recavtd," be never 
uficti) these wonls. I earned it lo Hr. Har- 
wood, whom Mr. Hiimiihreys spoke to. I 
told him, Ihat I did not lilce it, it being written 
iu a strange hand ; 1 would iMtt thernbre lake 
notice of II. We observed lliat there was iba 
f and r, in " For myself and |iartneni," wrote 
in a, different hand. 1 thougtil that there 
might he some wickedness at the bottom ; I 
went therefnre myself iiilaMr. Boetli's nifiee ; 
and be and Mr. rhip;i(.'S being ihcrc, I desired 



195] 2 GEORGE 11. 

II r. Plilppps to look into the books, And see 
whether one Mv. Watson had credit for such 
a sum. Not tinding^ ttixy such thing, I then 
desired tbein to look into the kaleudars of the 
ledj^ers. Tliey looked, and saw that there 
was no such name there, i said then to Mr. 
Booth, I have a note for 6.400/. which I do not 
like, and will not pay, without enquirini^ into 
it, and acquainting Mr. Jac<mib (nlr. Jacomb 
was then aoove stairs, which 1 knew not). I told 
Mr. Booth tlie circumstances which made me 
suspect a forgery ; Ftfh ! fsaid he) this is a 
Tiilainy, a for^rv; this looks liKC one of 
Hales'ii tricks. I wailed for Mr. Jacomb's 
coming down ; f said to him, Sir, here is a 
note for 6,400/. whidi I believe to be for^l. 
It is (said Mr. Jacomb^ very plain ; here is a 
rasure on a frank. (Mr. Booth having recol- 
lected that Mr. Hales some time berore had 
two franks from him, one of which he now ans- 
pected to be thus abused, acquainted Mr. 
Jacomb therewith.) He enquired where we 
had it ? We told him, of Mr. Hampbreyt, 
Mr. Hoare*8 servant. He hereupon took me 
out with him. We went to the fiaidc. I sUid 
in the outer office, whilst he went in and ao- 

Snabted the directors, that such a thing had 
appened. Mr. Bromfidd was sent ibrt and 
•zamined, what the reason was of this direc- 
tion, 4hat it should be left with him ? Urn said, 
lia oould give no reason, but that Mr. Hoare's 
man used to transact affairs with him ; Mr. 
Jacomb took the note to Mr. IIoftre*S| and I 
went to dinner. 

Sol, Oca. Is it not usual for Mr. Gibson -to 
€nter notes in the book when he makes them 
out, and give you notice of them P 

FhiUJDt. Yes, 8ir. 

Sol. Gen. Sir, k>ok on the Pand r, and tell 
OS what you think of them ? 

Phillips. This is certainly Mr. Gibson's F, 
the o seems thrust in irregularly, two e*B 
€rssed, and then follows <« Myself and partners." 

Soi. Gen, You have seen liis franks ; doth 
4ie make such a distance between tlie F and 
the r ? Cast your eye again on it, and see whe- 
ther tha distance between the F and r be such 
■s is usual in his franking. 

FkiUipi, Much as osual, for 1 have com- 
pared it with some franks, aud they are there 
at the same distance : but 1 observe the o is 
not of the same letter, but crowded in irregu- 
larlv : And the o is of a blacker ink. 

Sol. Gen. Please, S^r, to k)ok on the be- 
ginning <rf the m : What observations do you 
make on that ? 

FhiUipe. There is the stroke before the first 
minini of the m that seems of lighter ink. 

Sol. Gen. What do you make of that ? 

FkUlips. It seems to me to be the tail or 
4illtnofthee. 

Mr. Maddox called and sworn. 

SoL Gen. I think, Mr. Maddox, you belong 
10 the Bank f •^Maddox. Yes, Sir. 

SoL Gen. "Proy^ Sir, will you give ns an 
■coounty whether any notice was givon you to 
•top no/ Bank- Wis r 



Trial of William HaU$9 



[196 



Madiai. Mr. Brassey, with Mr. Hum- 
phreys, (Mr. Hoare's man) came to the Bank to 
desire me to stop five not^, with the nnmbcn, 
dates, and names. I looked and saw that 
tliree of them of 350/. were already pud. I 
took the numbers of those not paid, and gavt 
directions to all the tellers, that tne minnte any 
brought any of them, they should give mt 
notice. In a little time after I was gone vp^ I 
was called down again. Pewtress (one «f 
them) came to me, and told me that two hun- 
dred pound notes were brought and demandedt 
I asked him, who brought them ? He told ms^ 
that person (Rumsey). I bid him bring a em- 
atable, and not come back again till ne hid 
brought one. When lie had brought OM^ I 
charged him with him. 1 asked,him, where he 
had those notes ? He would not tell me whfie 
he had them, nor who he vras, but was vm 
obstinate. One of the officers of the Bank saio, 
that he knew him, that his name vras Rums^, 
that he belonged to the Eagle galley. He 
asked me to let him write a letter ; I let bun, 
but would myself appoint the messenger. 'Hi 
wrote a letter, signed it Thomas Fowler, aoA 
directed it to Blr. at Robin's oofliBe^ 

house. I called some officers of the Bank, 
and directed them to go there with the eon- 
stable, and see what suspicions person wis 
there. They went into the coffee-house, and 
enquired of the master of the honsc what com- 
pany was there. He said there were only thiet 
neighbours, and a fourth person whom he dM 
not know. Whereupon one oftheoffioentf 
the Bank said, I know that person ; that is Blir. 
Hales. They went and seized him. As tiuy 
brouffht him mto the Bank, Ramsey said, thtt 
is the person that F had the notes of; and would 
fain have spoke with him. I kept them apart, 
carried the one up stairs kept the other bdow. 
They searched Ilumsey, found about him 60/. 
and ^L in different bags, and two notes were 
slopped below, before they went up to Mr. 
Hales. They found upon him above stairs 
thirty -six South- Sea and India bonds, a bill of 

fiarcels tor some of thcui from Mr. Hals, five 
Kindred and odd pounds in money, a note of 
Mr. Brassey 's, and Mr. Sbales's note. 

SoL Gen, What account did Uumsey give 
of the money found upon hirol'* 

Maddox. Thirty ti^e pounds and odd money 
he said wert his ovvu wage!s». There was about 
60/. besides, which he said was Mr. Hales's. 

SoL Gen. What notes had I^Ir, Huies about 
liini ? 

Maddor, He had a note of Mr. Brassey 's of 
680/. the remainder of the 1,100/. note; a 
note of Mr. Shaleb^s of 12U/. A note of Mr. 
Thrupp's he had received, and had procured 
the money for il, as he owned when ne came 
upon his exiuniuution. 

Sol. Gen, W|s bis examination iu writing or 
net? 

Maddox, It was taken before sir Edwiid 
Bellamy. 1 cannot say whether it^as in 
writing or not. 

Soi, Gen. Go. on, and give us an 



1 - " 1 Jar a MiaJtrntanor. 

wtu Mr. fifties niil when examined at the 
BiriE, «poB making up tbe tccouot of wtiat 
wwUMi fVooiliiui. 

MmUti. It wanleil about 4 or SCKH. of the 
AiUOt. Mr. Bate* bariiif^ tb>t day (as he mid) 
nii^Hil two GaM- India bonds, which hv bad 
fiMiai with Mr. Braaier i anil had ahn taken 
sfaaMasf Mr. Thrunp\ for 4O0/. which he 
iai Jimnalei with Air. Sbalc*. Amnng^the 
flfMf*atwer« found upon Mr. Rales, there 
■MMKCOHOi of the psrlicutar produce oflbe 

UCna. fThatdlilMr. Ralessay." 

iidier. He owned that he cniiiloyed 
tmamn ; bM nid, that be liimself was em- 
Blmiby one Samuel Palmer, a pcnon whom 
MM hn» acquainted with for «ame moutha, 
*aJ (kai (fab nolo na« left bv liim wiih him to 
■nort in aomething that wnuld tui n to account. 

Sat CtM. Was tb«re any noijce Ihea takeo 
d B>mai'y '• going by a tham name ? 

ilaridw. I remeajiierDoIlhat. 

&1. G(s. Was there any one ihat laid Mr. 
BbIm,11mI he was a laan of figures, and de- 
mtk htm iherdbn; la give a more particular 

Ibddai- Yn, Mr. nrosea Raper. 
im. Pagt, U it not eoough that Mr. Hates 
ktoidr owned that what be bud wag the pro- 
teaf ih« 6,400f. note? Did not )tuni«ey 
■Maf* all tkia f And came be not from hiin 
H Ai B»iik f Hath he nut owned it? 

r. That was one of llie notes found 
Hale.. 



I •<? 



inL Pagf- Dad you any ditcourae with 
Um abHxl lite import of it ? 



J- 



No, my lord. Thii paper, 
(uuod in lh« pocket of Air. Hales, con- 
a particular ae«uuni of the produce of 
IktMOOl. note, and d lUtle more. 
IW t«pci- read : 

Om at Mr. Henry Iloare's fur -1,100'. 

mUelotir John Hynde Couon. 

maafTOJ. payable to James Morelon, Mq. 

Ow«r i.000l. nf Mr. Nathaniel Braisey'a. 

Baok-DoUi, N". 4lQ, for 1,000/. 

413, for J.OOO/, 

414, for l,90or. 

415, fur 251. 
MM. rtoeiiad in Gold. 

Alt Ota. In caae of forgery, every cir- 
^■MMtce b oorroborating of the fact, and 
<^&dutm tUi was proper to be laid bvfbre 
fcjory. 

ImL Page. Whoae writing ia lhat paper? 

iladiLu. I bvliere it (o be his : I kuetv bitn 
Vboi a ffoldsnitli. 

iay Darmtll. Mr. Maddox, I deiire to aak 
)•• aaK qncMion. We bare a Tery good opi- 
iMaffoo : I'ray, do you not know oneNi- 
kMl PalBMr ? iJiid you never any iianvan- 
<iM in year booka between Mr. Hnlei nnd 
fc»Mri Pat»«r, with relation lo a lO.OOOJ. 

1>. Nl^ H 



A.D. 1728. [198 

Serj. Darnell. Nor have yon narer heard 
of him i* 

Maddot. No, only by the paper found on 
Mr. Hales. 

Serj. Darnell. Did not the defendant Mr, 
Ralei brin|f ynu a draught from Mr. Jacomb 
upon a particular occasion, payable lo DymerF 

Maddar. 1 cannot remenber this. Wo 
neier bad any accoani, tliat I know uf, witk 
Pahiier. 

Motel Raper, esq. bhotd. 

Atf. Otn. Mr. Raper, will you look on (hat 

Eaper P Hare you aeen it before f Do you 
now npon wbaioccaaioa it wsf wrote, at)<f bjr 
whom ? 

Rapcr. I waa at the Bank the Sth of Sep- 
tember last. Alderman Bellamv was lh«ri 
examining Mr. William Hslea : be was then 
giriog an account of the produce of that ante 
of 6,4001. of Mr. Oibion's. He was a lon^ 
time before he could cast it up. He itceiiieHi 
not much concerned. I said to him, I wander 
that you, who ere a man of figures, should be 
ao much at a loss : you wsnt about 4001. Ha 
at ten^h mentioned a note of one ThruppV. 
They aiked him, where he had that nat«? 
He said, of one Palmer of Mansel- street. 

All. Gen. Did you aee hiui wrilethal note f 

Haper. I saw him sum up that, as the.[iro- 
duce of the 6,400/. note. 

Alt. Gen. Do yon remember tliat iLe quei- 
tion was asked hiiu, why Rum&ey wcat l>y the 
name of Fowler ? 

Raptr. I know no reason that he gave. Ha 
was asked the question several limes, but gave 

All. Gen. The evidence, my lord, hath been 
so extreme long, and every part so well con- 
nected, that 1 shall nut trauble your lordsliip 
with any observations tliercupon. Ifiherelis 
occasion given by the reply, youi lordship will 
then give us leave. 

Serj. Darnell. My lord, and genlleroen of 
the jury ; 1 am couniel in ihi? cnte for Mr. 
Hales. And indeed, acoonliitg tn the misre- 

tresentation that they have laid him under, 
e is a very unfortuoale peraon. And really 
they have given a great deal to lead into a sus- 
picion of the tniih of what he is chargeil 
with ; but we think a good deal of it h owing 
to the misfortune he lay under. Riling; been 
a bankrupt many years, and not having ob- 
tained a certificate, it was therelure impos- 
sible for him to carry on any thiog in his own 
name; therefore, in the whole course of hia 
traffic fnr many years, he hath been forced to 
use tictitious names, and thereby conceal all 
receipts and payments. And the conseqoence 
of his doing otherwise is very obtious. Till 
he hath obtained a cerlitii.-ate, whulanevcr he 
received in his own name would br lubject to 
the commissioners. Tberelore (aocunling to 
my instrnciiooi) Mr, Hahs hath <.-on>'''aUd 
his dealings. I am intlmctcd, thai he had 
couuderabic dealings tvith one Kauiucl I'alaiar, 



1993 SS GEORGE IT. 

and that he was indebted to Mr. Hales Id the 
sum mentioned ; and bavinfir had great traos- 
actlons for many thoosanib of pounds, they 
came to a balance of the account, and Mr. 
Pahner [;a?c him this note in payment. It is 
difficult tor us to dear thincrs in such affairs 
as require privacy: bnt it appears, tliat be 
bath transactcHl great affairs. He hath books, 
thereby it appeareth that he bath traded for 
upwards of 300,000/. and that be bath traded 
ivith this Samuel Palmer for upwards of 
10,000/. To prove that this is not a forced 
note, will be extremely difficult ; and I think 
that it matters not any thinu^ to Mr. Hales, 
whether it be so or not. If it lie so, if this 
note came from Mr. Palmer to Mr. Hales, the 
forgery falls not upon Mr. Hales. The only 
thing for us to establish is, that it came from 
Mr. Palmer to Mr. Hales. They own, tliat 
he said, when the thing was recent, that he 
had it from Palmer. It happens (1 aajipose 
lirom a certaintr that the note was a iorged 
note) that Mr. Aimer is gone out of the king- 
dom. It is impossible therefore to produce 
him ; and if he was here, he oould not be a 
witness. And, if my instmctiona are true, 
that I^almer is gone, it leaves Mr. Hales 
without the assistance of Palmer. Taking it 
lor granted that he hath forged the note, we 
submit it that Mr. Hales cannot be guilty of 
the forgery. — Another part of the indict? 
nent is, that he hath published this note, 
knowing it to be forged. If he received it in 
satisfactJDn of a debt or demand that he had 
upon Palmer, that cxcuseth him. Mr. Palmer 
being gone, it is only possible tor us, first, to 
establish Mr. Hales's character, then shew 
tliat he is a ^at dealer, and produce his 
books, in which these thing^s are entered. 
There are several transactions therein, some 
many vears ago, some later, that will be 
Terinetlby witnesses. If there be such trans- 
actions which we can verify, we leave it to the 
Court how far that will avail. Under these 
ciroamstances we beg leave to submit it to 
your lordbhip. 

Serj. Bajfnes, My lord, and gentlemen of the 
jury ; I am cooumI on the same side. The 
first thing that lies under consideration is, whe- 
ther this note was forged by Mr. Hales? That 
it was a forgery, tiiey have giveu strong evi- 
dence; but the only question is, first, Whether 
Mr. Hales did forge it? In the next place, 
whether he publisiicd it, knowing it to be 
forged ? These are the two charges laid against 
him in the indictment. We hope, that uiion 
the evidence we shall give, you will think him 
clear of what is charged. It is well known, that 
he hath dealt for as great sums as most in 
Lombard -street : he hail the misfortune af)er- 
wards to fail ; therefore be was obli^red to act 
in a different way from others. We shall shew 
that Mr. Gibson himself gave him such credit, 
that he trusted him witli ^eat sums of money, 
and with receiving rents m Kent. For us to 
prove a negative, that he did not furge tfaia 
ima^ caaaot be bnt bj riw^nnHaBflM, lo 



Trial ^WiUiam Hales, 



[fee 



order to charge ns, they haw gone a grnl 
way with ciroumstanoes ; and the question isj 
what validity these circumstanoes will liata 
with you ? They lay a stress upon this, that ha 

Sve directions to fuimsey to tralwact theae af« 
rs, to change his cloaths, his wig, and to ^ 
on another hat As to that, that will dcocad a 
great deal upon the credit of Rnmacy'a cvi« 
dence which he gives. Mr. Bnmsey app iaii 
to be partieeps criminis : therefore, thoi^ i 
cannot say but this evidence is le^, yet iti^ 
fects his character and credit: it is notaoch'aa 
if he was an indifferent person . As lo the wig, 
they made a great noise, as if it waa bowll 
with a design to impose on persons in tfaal» 
guise. We shall shew that it waa not, boCviik 
another design. Mr. Hales and Rooiaej bai 
an intention, before Monday, to go iato tha 
country. He himself saith, that be only M 
the finO light wig which he bad upon hia naad. 
It was very proper at that time of the JMI^ 
that he should have another wig to travel ia. 
Therefore it seems probable, that it waa bongbt 
with that view, and not to impose upoo per- 
sons; since that could not make an alteralM 
in his cooatenance. As to his acting iindat a 
different name, that seems upon this acooont ; 
Mr. Hales had the misfortune to have a eon- 
mission of bankni|>tcy awarded agaiast Um t 
and after long soliciting for a cxrtifieate, "*'' 
not get it: therefore, although be Iran 
great affdrs, all the sunra which he 
ciated were forced to be under feigned and 
rowed names; because if his creditora ' 
that he had such credit, and negociated 
affairs, they would be the harder npoa Ui 
Therefore there was such a direction givMi 
that Mr. Hales might not be known to be eoa- 
cemedinsuch an affair.— It is incumbent apaa 
us, first, to give an account how we canae bj 
thtftnote: there was one Samuel Palmer in- 
debted to Mr. Hales between 6 and 7,000i. ; be 
came to him, offered this note as a security, 
that he might pay himself upon receiving tkia 
money ; thereupon Mr. Hales very inaomtlj 
took the note, not questioning its goodaass. 
Mr. Gibson being a man very well known, Mr. 
Hales knew that the signing was his hand, 
thouqfh the body of the note was not \«ritten bj 
him ; and he miglit be easily imposed upon, 
and take this as a good note. No wonder that 
it should be thought so. Thoutzh Mr. Poltock 
suspected this note, because it was not written 
by Mr. Gibson's own band ; yet it is plaia, thai 
at Mr. Hoare's shop, Mr. Turner made aa 
scruple at all to exchange this note, and giva 
other notes for it Therefore, though they saw 
that this note was written on a different piece 
of paper from what a note of such a value used 
to be, it is plain that Mr. Turner did not think 
this of so much weight. No wonder, theea- 
fore, that Mr. Hales sboulil be so imposed ea« 
The next part of the convitleratiou is, Wlictker 
he published this note, knowing it to be forgeAf 
For otherwiae it is not criminal. Thtiuwa 
the indictment runs, *' Knowing it to be foil- 
ed." NoW| in case that we prove this fintpart 




IxipetUalthen'it- 
np M, tlia ulhcr part will fall 

iti, knowini; il tn l>e funfcil. In pub- 



^ nir lardsbip. 
t^ in'iIicUucDl my lord, rani, tliRl lie, vi el 
w«u. ra. * «efbii M ti[[um iieiiuFnilliiM,* 
bil«4lhi* u*te. Nnw, my lord, it a nul pre- 
^M«M he foTgeil the name of Mr. Gibwm ; 
^ Mi fciifiiii , llioagh I do not cootrovert that 
kckricntisntFr my Dtme ta guilty of for;- 
^ ii|ikitb*ile note, y«l ool ■ Terbii et ligari* 
'^^uIhh ;* tlial 19, forging ilie whole note. 
Iknfot being charged berewilh, and lliey 
^■■inff ilul li* dkl write LUe iiaii;ii I'bomas 

^M. Fft. In ilie name in Ibe indicttneoi t 
Jmi. B^*a. Vci, Toy lord. 
Jml Pmgt. Now I'liomnK Gibson n agrpcd 
k bkilfaekaarfuf Mr. Gibon, but not to ibal 
I M» 

I bq. fi»rM)- No, ray lord, I admitted that, 

I iiiMiBf ibeobjeciioii. I Mid, llial he Ibat 

I vntmmiwt my name i« guilty of tbrging such 

t IMHi bal noi ' in lerhis el tignris seqiiCDli- 

I 'b*l' b« ■■ fui guilty of forging Ibe name of 

n^HB (iibMM). I'bcy boTe tokeo upon Ihetn 

to fa thai thia nota was ' verbis et figurii je- 

■'MMibui;' thrn aller tbe body of tbe noK 

M«ab Thotuoa Oibavn. Now,ii>y lord, we 

Mifattd tlM ia uot fore^i. Tfaotigh tbe 

I MMBc* b4 the note is nul Mr. Gibson's haiid- 

Iwiilf t yet tlu^ <"*», on Itie otber hand, that 
A* w«e n Ibe band-writing of Mr. Gibson, 
H 1^ it >p(ieara tery plainly, that we hare not 
inrf llin DOIc ' verbis <!( nguris aeqiieAtihua.' 
Jm. Faff, (trolher, dn you rely upon this 
"" ' »? If you do, I will yi»e you my opi. 
I wbcn tbe whole t» liiiiibed. 



Mr. Crammer railed and sworn. 
Dai^ull. Kr, are yoa Br^iinioted with 



•n.iW.1 

■r.#a«i 



. - „ >t penonally aoqnainled 

rtklM»,dMarh I barelinnwD bini by light 
mmy yw«. 1 know nothing at all of bis 

9my Durmtll. Do you hnow Hr. Snmuel 
hkmrt Dayaubuuw biadealin^i' 

e*au. Yn. Hir. aa to Mr. Pulmer. 1 knew 
tialMwaobiid. 1 married hi* mollier. 
•■ tmofhl up at Ibt) Bait India house, 
■M lij l£* I^Mt India coiupany iota IVi 
"'"" ' ""■- I many yean.. Not hating tbe 
4 that be evpei'ti^, he relumed 
It Maycd iu Turkey. 
: t'sge. Were you ibere with him f 
■" " """ what did you know of 

jk ba came home throttgh 

: Y<M caoMrt tay that upon oath, 
— -^,_ -rtBO* Iherrwiih him, Did you 
Wa Ihm hn* ai Laodou ahiT bif rMuni f 
■taMbafWiar 




A. D. 1728. 

Gminger. I know not of any dealia^ni 
had io Eogland. 

Just. fa^e. DuyMiknowofBoy ImoivoLiOB 
between bim and Mr. Halnf 

.rahgtr. Hf told inc 

list, i'age. That \a uuibing. What subslanca 
he off 

■rainger. He bad no GiibsUnce atall,for ba 
HD inaotrent man. 

uRt. Page. How long aince he wa* in 
Londuo f 
Qrainger. Within a Iwaliemcalh. 

Thomaa At/lcs, esq. called and iworn, 

Serj. Baynti. You are desired. Sir, to gitc 

I account, whether you know the defendant 

Hr. Hales, bow many years you hare knuwn 

bim, and what is your opioion of his.'' 

A^let. I baTeknowubiiD twenty, three yean 
ind upwards, when partner vrilh sir Mepheti 
ZviDce, with whom i keiit a considerable casb 
nil that time : I reireived a great many ci(i< 
lilies tram Mr. Hales upon Beveral onMsiona. 
' r which 1 hare always bad a good opinioH 

Serj. Baynfi. AV'bat opinion bad you of hia 
character ? 

Aylei. I look bim to be of nagoodacha. 



passing through his hanils, doting 
these years that you ha>e knii'iii him ? 
Ayltr. Not any since his failure. 

Mr. JLary. I beg a word of the same aide 
with the other gentlemen , As Io iheexcepliniv 
they have made, il will not be conti-ndeil (I 
believe) but that they might have laid it oiher- 
They might bate made il a forgery of 

e, though ibey had acl i( forth otherwise. 

Our objection is, Wl>elher " verbis et ligoria 
sequeniibiHi" doth Dot lie it down to the tecnud 
part of ibenoleaa well as Ibe rest? Aoolber 
thing is this ; lliey have grien nn account of 
the publication at London in Mr, Hoarc's shop ; 
whelber slrauld not the forgery be lixed in Lon* 
don too ? 

Jaat. Po^e. If afiirged note-be pidiliibed in 
may not Ihe proseculura lay it in 



Mr. Lucy. 8lrauld notthe torgery be local as 
will as the pitblicaiioD f 

Jusi. i'uge. Yes. If ihatvery act "f foreery 
had been in Middlesex, it ought to bave been 
tritd there: Bpt where there is tio |<ositiv« 
and direct proof of the forgery, but the nhola 
nriaes from circumsiancei, some in London, 
and some in Middlesex, it may be laid in ei- 
ther ; or il would be impnasible ifast anir artful 
persoD should be convicted of forgery ; il iabul 
being aJone when he commit* the tad, and be 
is aatc. And ihe ot^eotion will be aa strong hi 
one CDtmly as in another ; and then, if your 
doctrine be true, be can be tried no where, 
whiih sore is noi so. Yon know a telony may 
botrittd ill any county wb«ro tlic goods arc 



SOSj 



S GEORGE II. 



Trial of Wiilmm Haiti, 



[SOI 



found on the prisoner. As to your other objec- 
tion, that the indictmeut is for fon;in^ the 
whole note, whereas Tho. Oihson is Mr. Gib- 
son's own hand- writing ; that is extraordinary. 
Did Mr. Gibson put his name to that bill ? No. 
Suppose, in a Ic>ss degree, Mr. Gibson had given 
his note for a less sum, and Mr. Hales bad only 
made it for a greater, would not that have been 
a forgery of the whole bill ? You know it is so 
•f a bond, bank, or other bill, in every day's 
coaimon experience. 

Att. Gen. My lord, this was the same case 
with Mr. Ward's. There it was adjudged, 
that Mr. Ward fmyed a note of the dake of 
Buckingham's in that form. There wae no 
pretence but that it was (as originally) the 
duke of Buckingham's note. This objection 
was then made, but it was over-mled, That 
the altering a material part was making it en- 
tirely another bill. 

Serj. Dameli, My lord, we have done with 
eur Defence. 

Sol. Gen. My lord, as their defence bath 
given us no further occasion, we shall not take 
up your lordship's time with any reply. 

Just. Page. Gentlemen of the Jury, the 
prisoner at the bar is indicted for forging a note 
of Air. Gibson's of 6,400/. and also tor pub- 
lishing this note, knowing it to be forged ; 
upon which two things are proper for your 
consideration : First, gentlemen, by whom this 
note was forged, (for it is agreed to be a forged 
note) whether by the prisoner, or if he was 
privy to, or concerned in it ? And secondljTf 
Whether he us guilty of the publication of it 
knowing it to lie forged ? There have been a 
great number of witnesses examined ; and I 
should have gone over the whole evidence as 
it was given, but the counsel for the prisoner 
have eased me of that trouble. Forgery it 
what couoenis every £nf|[lishman : As paper- 
credit is come to that bright it is now m, the 
utmost care ought to be taken to preserve that 
credit: but still the innocent must not suffer. 
As to this note's being forged, which hath 
tjken up the most part of the very long time 
this cause hatli been trying, the counsel for 
tiiG prisoner all agree that it is a forged note ; 
and then it will be to no purpose to sum up that 
part of the evidence to you« I shall therefore 
take notice only of such parts as go to prove 
j\lr. Hales himself guilty of this forgery* or of 
his publication of it knowing it to be forged. 

The two iirbt witnesses were Phifip and 
Robert Booth, which may be proper to be 
taken notice of by and bye. 

The third witness was Rumsey, who hath 
gone through this whole matter, and whose 
credit hath been supported by others of un- 
questionable reputation in every material cir- 
cumstance, lie tells you, he was no dealer 
in thid kind of business, but a perfect stranger 
to it, bred up to the sea: that he hath been 
aciiuauited with the prisoner for abont a year, 
and from June, till the time this fact_was 
committfidy wis ?ery much with him. 



note, which was read and shewn to yoa, bean 
date the 7th of^September last; and the wboW 
management was carried on till the 9th. He 
saith, that on the 7th of September, which wie 
Saturday, he was at Mr. Hales'i, not thct 
knowing that he was to dip his finser for his 
in so vne a thing. He says, Mr. Bales only 
then told him, that he must go inlo the citv 
with him on some bnsiness; and that ha 
dress, which was a red waistcoat and breecbs^ 
were not proper to appear in, in the effsir he 
had to employ him in ; and that he had pro- 
vided him another (the same which RimiiBj 
has now on). That he was not tlionght ik* 
poised enough, but was in this new drcsi ea^ 
ried to Holborn, and there had a Mack penkl 
bought for him, and a letter-case with papf 
put m, as a man of busiuess '; from whamL 
after he was equipped in this disguise, be aal 
the prisoner went together to John's ooffbe- 
house in Shire-lane. * 

You will observe, gentlemen, BIr. Hales, m 
Romsey swears, did not then discover to hini 
what he was to do ; but it was to come out m 
by accident, which was thus : soon after they 
came to the oofiee- bouse, a porter with a lettar 
directed to Rumsey, came there, which Mh 
Hales immediately took from the porter sal 
opened; which then appeared to be a oovw 
with this note in it, and nothing writ on the 
cover but. Lady Harriot Elliot 4,300/. Sur Jeha 
Hynde Cotton 2,100/. This, Rumsey say^ 
he did not understand ; nor did the prisoasr 
nve him leave to open the letter, knowing Isi 
Ramsey says) he wss unacquainted with M 
contents of it. But when BIr. Hales btA 
opened the letter, he explained to him whU 
the two names and figures meant, and thsa 
told him, he would have him go to Bless. Sneis 
and Poltock's with this note, and get of thass 
two bills, one for lady Harriot Elliott for 
4,300/. the other for sir John Hynde Cotton 
for S,100/. and told him, that BIr. Snow's shop 
was a little without Temple-bar, and did not 
so much as trust Rumsey out of his sight, but 
went with him over-against the door. Iliim- 
sey goes in, where was BIr. Poltock. Tho 
first thing BIr. Rumsey does is to produce a 
Bank-note of 40/. and 10/. in money, and to 
take his note for 50/. and then produces the 
note for 6,400/. But BIr. Poltock being a 
very careful man, and being now called, says, 
he made much the same observations that I 
believe you have all made on view of it. Ha 
says, it was an odd sort of a bill ; that he never 
had any of BIr. Gibson's bills but of his owa 
hand-writing ; and that this was writ oo so. 
scanty a piece of paper, that he would nol 
metldlc with it. 

When Rumsey came out of the shop, ho 
says he found Mr. Hnles over-against the 
door, where he left him, and tells him what 
ill success he had had, and gives him back tho 
note : whereupon the prisoner and Rumsey go 
back to the coffee-house, and there the prisontf 
said, he must try elsewhere, and nanied Mr. 
Hoare'i, And to give Kumiey credit tbci% 



m 



Jbr a Mudemianor. 



A. D. 172«; 



[306 




li««ii«l 10 pty in Ml Horn's 70/. that is, 
Jk Mtek^iois for 501. and 30{. in rooney, 
IrilitriR fism's bUi for 70/. which was 
i: teitwtboi acaree light; and CTcry 
Mr. Giboan's fery great credit, 
rriAo was then in the shop, with- 
HHwh this note, takes it, and 
two odiers. But Mr. Hales 
is Greeted Ramsey not to take the 
Mm Is Isdy Harnott Elliott, hot to 
'^ iGfOSfcnor or bearer, and the e,100/. 
f Johi Hynde Cotton or bearer ; and 
flsafinns. And Kuipsey swears, 
also shewed him Mr. Hoare's 
with him almost to the door. 
Samser had soceeeded at Mr. 
htsiySfhe found the prisoner wait- 
[tf a fialHitall, a small distance from the 
1 there he gave the prisoner the 70/. 
mi the notes he had reoeired in ex- 
Ar Mr. Gibbou's. Rumsey swears, 
Hfet nothing, and that tho prisoner 
ivbole profit Bot th'is wonid not do 
easiness, nor did he rest here. 
tU^g therefore b to make the best 
rssles, and to manage matters so as 
ilililnesd or fonnd ont; in which, gen- 
'" \% was certainly right that the notes 
IJedufted and changed, divided and 
" ' as moch as possible, that no track 
■■ht be seen : and for this, Rumsey 
f Am he acoordiogly did go with these 
the prisoner's direction, from one 
i ts another ; first with the 4,S00/. 
JiMr. Woodward's, who wouki not 
viih it; thence to Mr. Brassey's, 
ih cfaaoffed it for four bills, which he 
Mr. Hales, who waited for him at a 




Ramsey received at Mr. Bras- 
, jjljh t goUsroith's, in exchange for Mr. 
^prt Mitt of 4,900/. were four, viz. one for 

for 1,100/. and two for 1,000/. 

de payable to one Samuel Palmer, 
P^ — same Rumsey was instructed by 
Abto take these notes, and was himself 
'AMby the prisoner to go by the name of 
tMB^vliieh hedid; and the prisoner was 
[^*Mil, that he waited about Mr. Bras- 
4^Aip during all the time Rumsey was 

jny says, that he went and lay at Mr. 
gfc that and the next night ; and Mr. 
^U him be ready on Monday morning 
be had then put on : and accord 



WM Monday morning he went with him 

^^iewav's coffhe-house, where it was fixed 

^ k iboold dispose of these notes, and 

^fe ded by the prisoner to go to Mr. Ai- 

■ ^^ Bankey's to make other alterations, 

- i^ ^ ^® Maker's for the bonds he had 

I %b, who tokl him he had onl v got 1 ,000/. 

^i^^ieh Rumsey saj^s he had, and af- 

^^ en his goinff again^ Iwd more. 

jjwfanco, I rare laid [this] before you, not 

"^consideration whether Mr. Gibson's note 

^^ifed, for that is admitted ; but how far 



Itr. Hales hu been concerned an actor in 
this aifoir ; and to put you in mind (if Rumsey 
swears true) that he was only the cat's claw, 
and a mere tool for Hales, and that Hales 
contrived and ordered every thing. 

When all this was so succe^nlly carried 
through, the prisoner semis Rumsey to the 
Bank for moaey, where the matter comes to 
be discovered in this manner. 

Mr. Humphreys swears, that he being Mr. 
Hoare's out-going cleik to carry bills abroad 
and receive money, on Monday morning he 
went to Mr. Oibeon's with tliis note for 6,400/. 
Mr. Gibson, he says, was gone to Bath ; and 
it is remarkable that the note is dated on a 
day when be transacted no business, and it 
was not published till he was gone to Bath. 
Mr. Humnhreys says, that he not meeting 
with Mr. Gibson's cashier, desired the money 
should be paid into the Bank, and letl the note 
for that purpose. When Mr. Gibson's cashier, 
Mr. Phillips, came home, he says he had the 
bill, and looking upon it, saw great reason to 
suspect it, and thought it not probable Mr. 
Gibron should draw a bill as that was. He 
saith, that in all his time he nerer knew Mr. 
Gibson sign such a note, nor any note for 
money, but of his own hand»writing. The 
size of the paper also, he says, confirmed 
his suspicion. And sure, gentlemen, paper 
must be very dear, that a note for such a sum 
should be wrote on so scanty a piece as you 
have produced. But the casnier further says, 
that looking on the note, he found there 
was a manuest alteration in the writing ; Tho« 
mas Gibson was Mr. Gibson's hand, but a 
rasure appeared above it, and th^ letter o in the 
word * For' to be intruded in it, and wrote with 
another ink. Yon have all seen the note, and 
to me it seems very plain, that the letter o was 
not originally written in that phice. And to give 
you at least a very probable account, that this 
word was at first * Free' and not ' for' and done 
by Mr. Hales himself, the first witness (Mr. Phi* 
lip Booth) you will remember swears, that the 
prisoner some time ago prevailed on him to get 
of Mr. Gibson two franks on two letters of Mr. 
Hales, directed to Robert Booth, eso. of Bris- 
tol, ; and says, that the foldinirs of those letters 
were largfe euough to tear off the piece pro- 
duced. And Robert Booth, esq. of Bristol, 
says, there is no other of that name there, 
and that he never received any letter fraoked 
by Mr. Gibson. And as things of tliis kind ant 
generally made out by ctrcamstances, '^ ^^ 
no very hard thing to erase the two ^r'i, »r 
the o between the F and r, in such aim— ^^^ 
this has been shewn to you. Ocptfc y-^ '' 

Humphreys goes further, and wJ^J^SiLf^ 
to the Bank about noon that dsy» •^ *'■■*' *• 

Mr. Gibson's people had not pai^Jr 



at which he says he was P^^f.^.^i ^w j«.*..».. 
knowing Mr. Gibson's credit f^' ^ ^^-« 

ness of his people; and '**^"* Vi 
son's to know what the rt*^ 
was informed of the ^^^'Jl^^ T « 
out thus. Mr. Hoare's t'^^ "•• ■ '" '* 






S2071 2 GEORGE 11. 

thifM and chati^ed about, at yod bate heardi 
aome part of the mooey was at last in Bank- 
bilLi, and there Rumsey that Monday morning 
receif es 6502. on account of those billa, before 
the fraud waa disco? ered. But from what ap- 
peared at Mr. Oiboon'a, and the Bankoumbera 
of the bills delivered being entered, care waa 
takeii to examine the receipt book, to see who 
came for any more money on those bills. And 
Mr. Maddox tells you, that be having notice 
given him, ordered the clerk that paid, when 
any body came with those bills, to seem ready 
to pay the money, but to delay it till a conalabie 
could be fetched : that aoon after Rumaey came 
a^in, when a constable was fetched, and cnarged 
.with Rumaey. He at first declined to give 
any account of his name, or where he had the 
note; at length he told Mr. Maddox, that if 
they would let him write a letter, he wonM 
•end it to the person he had the note from ; and 
aceordingly writea a letter to Mr. ■■■■■ 
(with a blank) at Robin's coffee-house, with 
which the constable, with some of the clerks of 
the Bank, went immediately to see who waa 
there, and found three persons besidca Mr. 
Halea. The three were neighbours whom the 
coffee-roan knew : Mr. IlaTea was a stranger 
to him, hot known to the officers of the Bank. 
When he was aeiied, Mr. Rumscy waa exa- 
mined again, and owned that that was the very 
person who sent him with the bill. U|)on this 
Halea waa carried up stairs, examined and 
aearcfacd ; and not only one of those bills that 
had been received found upon him, but also au 
account under Mr. Halea's own band, that ex- 
actly tallied with the account Rumsey gave. 
And Mr. Maddox says, the prisoner owned the 
account to be his; and the notes, bonds, 
broker's accoimt of the bonds bought, and ef- 
fects found upon him, to be the very produce of 
the 6,400/. So that, gentlemen, you will now 
take it into yonr consideration, tnat the evi- 
dence against the prisoner doth not depend 
aingly on the credit of Rumsey, but that he is 
aupported by the number of witnesses you have 
had, and, iu particular by Mr. Maddox, and 
(which cannot err) the account and produce of 
the money taken upon him. 

Thus, gentlemen, the forgery being admitted, 
I hare laid beibre you that part of the evidence 
(bat principally affects Mr. Hales, and that goes 
to prove him either guilty ef the forgery, or of 
the publishing of this note, knowing it to be 
forged. As to the tbrgery, gentlemen* of tliia 
note, by Mr. Hales, I must leave it to yon upon 
the strength of this evidence, wliich has been 
▼ery long, and (1 doubt not) fully observed by 

Jou ; and that you will give it its just weight, 
(ut aa to his publishing it knowing it to be 
inged, he bath not given you the leaat oolonr 
of evidence to tlie contrary ; and I must tell 
yon, wherever a for^red note, or other thing of 
that nature, is found in any one's hands, it is in 
law a strong evktenoe that he ia the ibrger, un- 
leaa he can give some account of it. B«it hare 
jo« af8 only told, that he bad it from Palmer ; 
WtH0l«Btwwd«fproo£ Mr. Hnlea'a coun- 



Trial of mUiam Hales. 



E« 



sd have indeed offered to yon in bis defence 
first, that be is a gentleman, and shall not b 
presumed to be guilty of such an uffeuce ; urn 
^ntlemen, aliallany other on a bare presump 
tion. But here, gentlemen, b great atrengtl 
of evidence that afl'ecta him ; I do not kn« 
that 1 have met with a stronger proof of th 
very fact ; it is not to be expected. They kaiff 
also told you, that he was a bankrupt, an 
could not get a certificate ; thattliecominMa 
of baokmptcy against htin waa about twea^ 
years ago. They say, that upon thai aoonm 
he was forced to make use of other nanM I 
his dealings, and sometimes fictitiona oMi. 
that he hath traded for upwards of 300,000i 
in that time: that Palmer was much emph^ 
by him, and entrusted in the carrying ai 
that trade, and being thereby indebteJ to Mi 
Hales in above 7,000/. gave him this note I 
part of payment ; which, aa to bis trading s 
that manner, I think, is so far from juatifyia 
bis character, that it is of itself a crime not mad 
leaa than that with which he stands charged 
A man that ia a bankrupt, if he aiterwatds hi 
comeaable, ouffhtin honour and conscianeai 
pay bia just ddots. It is not the first lime 
nave known that done ; general Wood waa i 
draper, fiiiled, and (laid very little ; hn was 
into the army for bread, and proved ao galtai 
a man, that he raiaed himself to be a gcnani 
He, like a good Chriatian, and a man that dMa 
be would be done by, paid hia debto to fk 
full ; which if the prisoner had done, it 
have given him a much better character, 
tlemen, his connsel have told you he ca . 
a vast trade for twenty years ; but do thev M 
you that his creditors were the better for il^ i 
were ever paid one penny? No, geiokmm 
they did not ; and therefore I mnat leave ill 
you, whether this waa not one continued actfl 
fraud to cheat hu creditors ; if so, it will -'^' 
the prisoner quite another way than hb o 

intended it. And though two or three wit 

were called to give evidence of the dealingihl 
tween Mr. Hdes and Mr. Palmer, there wi 
not one thing proved : so that, gentlemii 
there seems very little for you to conaidB 
You have a number of concurrent witnoiad 
that have given you a full and clear acooont < 
this whole transaction ; that this was contrived 
managed, and carried on by tlie prisoner in 
very extraordinary manner, and which tbei 
was not, nor could be any reason for, but I 
avoid being detected of the vile crime lie ia nni 
charged witli ; nor can there be any doub- bl 
the whole produce of this note was for his bl 
nefit, the account, bonds, and billa, having bea 
found in his pocket. 

I roust leave it to you, gentleroen : but nen 
was stronger evidence than here is, that Ml 
Hales is the author of this. So that I thial 
gentlemen, if you believe the evivlence, Ih 
charge, one way or other, is lully broiighl I 
the priitoaer's dour. If you believe him guikj I 
the forgery, you will then find bins gnihyga 
nerally of the whole indictment; bnt ifyoa m 
not aatiaflnd of that, you will only imi kk 



' SV) TnMtqfmiUamtIale$. 

Mbf of A* Mfacr part of tba iadMlnwnt ; or, 
tym MB ^^ ihu cvUeoof , jou may acquit 

IW Jny hcwf witUrawn, «fW a Tei* mi- 
iMi Nff, braogfat tbe prwciMr in Guilty of 
fa|a( ■» MMc, and of pnMMliing tbe Mine, 
hSrafki* Iw biged. 

r wu « fMond time indictnl 
m «f S8 H. 8, e. 1, for obuinm; 
J tolMM. To whiab indicbnent 
t plnuUd Not Oiiiliy ; and the 
w, in tnMwio*, being oSered ai 



A. D. 17S9. [SIO 

apen the fbrmer indictment, the ynj brangfat 
him in Guilty. 

It ii (tated in tbe former edition, that this foil 
rennt, taken in ahort-hand by order of Hr. 
OibMD, waa dot obtained in time for interdon 
near to the other Cases reapeeting Halei, tn 
wbieb |>art of the work waa Ikercfbre tobrti- 
tnled a abort account of the trial taken fmn 
tbe SeanOQ Paper. This full report bring uow 
giren in iia proper place, the abridgement from 
the Beanoa Paper u omitted. la Uiat abridge- 
ment the trial u stated to hare been on De- 
cember Mb, 178B. 



I7L The Trial of Mr. Wiluah Hales, at tlie Sessions-House ia 
the OW-Bailey, before the Lord Chief-Baron Pengelly, Mr. 
Justice Reynolds (afterwards Lord Chief-Baron), Sir William 
Thompson (afterwards Baron), Serjeant Rabj, and several of 
his Majesty's Justices, for Misdemeanors, in forging several 
Notes and Indorsements in the Name of Samuel Edward^ 
esq. and publishing the same, knowing them to be forged :* 
3 George II. A. D. 1729- 



OjfJrr. OyEZ. All manner of per- 
mimt lw*c any thing to do at the muioqi 
if Ojeranil Teriiiiocr, held for the city of 
Into and c«unly of Sliddlesex, draw neai', 
ml pic ronr allciiilancf:. 

Ofis. "Van good mtui nf llic city of Lonilnn, 
^■■Meil lo a|ipear here tliia day, ii|ion tiie 
1W brtneea our •orerngn lord ihe king and 
Vatam llalpt, answer to your iiamen, ai 
(Mapoa, Sic. — James Tilnier, Samuel Cran- 
mr, RicbarU Knollyi, William H<)»anl, 
HMnRogcn, Abraham Punier, Robert Ktiap- 
hd^lt(•bert Kendal, Jolin llearoe, Thomas 
■aaee. TbomH C'nurt, R^ljili Knox, Tlioinu 
F«d, CoraeliiH Slason, Jobo I'ote, Richard 
Etuncy, Jame* Coulter, Henry i$pi'a;»f, 
iMyb }BC:kM>u, Henry Athliural, Jcjtin UeT- 
Uft, IVilliain Selwyo, Samuel Craiglicad, 

Pitdcrick Ktaunton, Eloikyni, Joliu Jtu- 

' Nicbolaa Bemfield, Edward Tay, t>t:ter 



htkNie 
Gmk. 



Ckrk. Yon chall well ami truly try thii 
iwt buween our toFerei;;n lord the king and 
Vjiam Hatea. Sa help you God. 



^Ml Cranmer, 

fetad k.noUy«, 



Joar. 

I'boma* Ford, 
Ralph Knox. 
Cornel Jul Haton. 
John l>nte, 
Richard Chauocr, 
Jaaepb Jacbion. 



1 Cltrk. Oyex. If any man ean inform onr 
Borereign lord the king, the king's jnitices, tba 
king's attorney, the Iud^i Serjeants, in tbia 
rauw betweFn our «otereign lord the king and 
» illiam HaJFfl, let him no» come forth. 

Attorncfi General. (Sir Philip Yorke, after- 
irarilB earl nl' Elarduii^ke). Sly lord, we desire 
tlitl those that nere Bummnneil on the jury, 
who happvnpd not to be iKnrn, should flay, 
Inl vriten Mr, Kiniiersley a aTraigoed there 
should bna detect of jury men. 

It wnH ordered accordingly by the Court. 

Clerk nf Arraigjit. Gentlemen of the Jury, 
William Hales viands indicted, by the name of 
Willium Hales, late of London, goldsmith, for 
that he bein^ a person uf eril fame and conver- 
salioD, oiid enileavoiirins Samuel Edwards, esq. 
and divers others willingly to defraud, on the 
lit of Juntr, in the parish of , had in 

his custody a certain note, bearing date May 
11, 179tJ, by which note it was supposed, that 
Mr. Robert' EJalest dill promise to pay uuta 

t This Robert Hales, Mq. Jan. -17, 1138-9, 
was tried at the King'a-beiich bar, Westmin- 
sler, liy a special jury of the county of Mid- 
dlesex, of which lir George Waltcn, koL waa 
fon-man, on an iodictoieut tor a misdemeanor, 
lor that llie said Robert Hales, esq. wonM ba*S 
defrauded Samuel Uilwanls, esq. of BOOf- by 
mean* of a note, drawn by the aaid Robert 
Hales, esq. lor a/Ml. ])Byable to Samuel Ed- 
wards, esq. iir order. TIm paper, on which 
the said Note waa drawn, hatinif the n 
the said tftuiiBct Edward* 01 



livlnck 11 



811] 



S GEORGE IL 



Trial ^WiUiamHatii, 



[»« 



Samuel Edwards, esq. the full sum of 800/. ; 
aiid that, on the same note, with an intent to 
defraud, in the parith aforesaid, he did frawtu- 
l^Dtly and deceitfully, on the IStb of June, 
forge and counterfeit a certain indoraement, to 
the grreat dama^^e of the said Samuel EdwardH, 
esq. to the breach of his miyesty's |>eace, and 
the ill example of his majesty 'a snbjeclfi in like 
case offending'. 

Mr. Siraniie. May it please your lordship, 
and you (rcntlemen of the jury, the |irisouer at 
the bar, William Hales, standeth indicted for 
forgiu;;, counterfeiting', and publishing an in- 
dorsement of Samuel Edwards, esq. on a pro- 
missory note. The indictment sets forth, that 
the prisoner did endeavour to deceive and de- 
fraud Samuel Edwards, esq. and othen bis 
majesty *saubjects, having in bis possession a 
certain promissory note, under tne hand of 
Roltcrt Halc«, lieariug ilate Ma^ 17, 1728, by 
which note, this Robert Hales is supposed to 
promise to pay to Samuel Edwards, esq. or 
order, a certain sumof bOO/. having this note in 
his custody, did forge and counterfeit, and 
caused to be forged and counterfeited, a certain 
indorsement ou the same note, viz. 

» Pray pay to for Samuel Edwards." 

and having in his custody the said note for 
800/. payable to Samuel Edwards, esq. on 
which there was so forged an indorsement in 
the name of the said Samuel Edwards, esq. did 
publish it to be a true indorsement, knowing the 
■ame to be so forged and counterfeited. This 
is laid to be to the great damage of the said 
Samuel Edwards, esq. the brewJi of bis ma- 
jesty's peace, and the ill example of bis ma- 
jesty's subjects in like case offending. To this 
the said defendant hath pleaded, Not Guilty. 

only as a frank of a letter to be sent by the 
post ; he, the said Robert Hales, having no 
dealings i^ilh the said Samuel Edwards. The 
trial lasted seven hours, when the^ury brought 
bitii in Guilty. But in June following, he 
pleaded his majesty's most gracious pardon in 
the Court of King's-bench, for the said offence. 

Mich. Term [tlie year of the King is omitted], 

Geo. 8. 

DoMiNts Rkx vert. Robe&tum Hales. 

** Mr. Attorney moved for a trial at bar on 
an information tiled by him for forgery. Uui 
it not being carried on at the expence of the 
crown, but of a private prosecutor, the Court 
held, that he miwt make out the usual requi- 
hites to bring it to the bar : so the motion was 
denied. And, at anotlier day, Mr. Attorney 
moved, on an authority from the king to pro- 
secute, and it was granted as of rigiit to the 
king in his own cause. And in HiU set|uen'. it 
was tried, and tlie defenilaut convicted. And 
in Trin. sequeu*. being called to judgment, be 
nrodnced a |iardon, which was allowed ; and 
being only for a misdemeanor, be was not pnt 
to go to toe bar, or plead it u|>on his knees." 
8iniif«i vol. 8, p. 816. Farmer Edition, 



Attorney General, Mv lord, and gentlenm 
of the jnrv, I am counsel on the aame side, for 
my lord the king. The charge against thed^ 
fendant, William Hales, is for forging an in- 
dorsement on a promissory mite, to Samnel 
Edwards, oq. for tbe biho of 800/. Tbe boIb 
was made in the name of Robert Hales, for 
800/., payable to Samuel Edwards, esq. sr 
order. And, gentlemen, it will appear, thai 
the prisoner hath been iruiltv both of tbigisg 
this indorsement, and of publisbing it kMv* 
ing it to be so forged. Gentlemen) tnis Samsd 
Edwards, esq. bath a considerable empfoyeil 
in the Exchequer, and is besides a membsref 
the House of Commons, and by that bath the 
privilege of sending his poa- letters free. Il 
was his misfortune to lite in the neighbourbosA 
of Mr. Hales, in Duke-street, in \VestminsMr. 
The opportunity for committing of this (rmnd 
seems to have kfceu in this manner : Mr. Haka 
used frequently to^ apply to Mr. Edwardii 
sometimes by binwelf, sometimes by a servant, 
for frank covers of letters to send news into thi 
oonntry. The gentleman's crood -nature in- 
duced 'him to accommodate him according « 
his desire with them, supposing that they wen 
only designed to send news to his friends in tbi 
oountrv. He having possesseil himself si 
several pa|iers thus subscribed, it will appcsfi 
tliat most probably he made use of one or tbcsi 
franks to commit this forgery. The fwrsery ii 
an indorsement ou a note of Robert llaki 
The note is thizt : 

«* Aftfy 17, 1798i 
'< I promise to pay to Samuel EdwardSi siq. 
or order, eight hundred pounds, three nonlbi 
after date, value received. 

" Robert Halib.* 

The Indorsement is thus : 

*' Pray pay the value of this to , Ibi 

raloe received. Samuel Edwards," 

1'his indorsement being thus wrote over tbi 
name Samuel Edwards, gentlemen, it apjpcsn 
by the face of this indorsement, that it isca 
off from another writing. There is the tail o 
a letter, which manifestly apiienrs. The won 
' the ' is wrote with aii abbreviation y. Tba 
wilt appear to be a wonl altered from some 
thing else. It is difficult to tell whether li 
read it fory«, or which looks like tbe troth s 
the case, for * ye.' It will appear to be ver 
; probable, that the manner of forging was this 
having possessed himself of these franks, h 
cut off a piece of one of these franks proper In 
a promissory note to be wrote on it, whid 
would have on the back of it the name of 8a 
niuel Edwards. When he had done this, b 
did not think proper to write the note hiowel 
but got another gentleman to write a proow 
sory note ou the back of this paper, payaUol 
Samuel Edwards, esq. or order. When tbi 
was done, the name Samuel Edwards ssns 
for sn indoraement on the note. And the ftlM 
ration seems to have been made in tbe iblloM 
ing manner: there being tbe word 'ffsa 
wrote over the saaei tbtro is Ike Isttsr 



say 



^r a Mitdemeanor, 



A. D. nS!). 



[?14 



u m M m between the f and the r. At to 

§i«'ttfter tlie r, the use made of them is 

ill : set ef the one of them is drawn the stroke 

fcrdM tetter jr, the latter c stands on ooe side, 

viMher above the y, and makes y^. Ha? ing 

tesMs, U epp eew, that here is a promissory 

vis, a the nune of Robert Hales, to 8amuel 

M ^ ■ i ^ een. end here is an indorsement of 

■r. Vsaiiel Edwards, by which, by virtue of an 

ad rf pafiaineiit^ which makes these notes 

aad tlie indorser liable, Mr. Edwards 

iaUe 16 the pajrtnent of this note. The 

_Jb of this note ts this, to raise monejr 

ity and atake the credit of Mr. Edwards 

MfMily for this money. Gentlemen, hav- 

i^ dsae ihia, he applies to Mr. Harle, to bor- 

MWflf Ues a certain sum of 450/. He knew 

Mj weH, that hia credit would not serve for 

im poraese, he beinf a known bankrupt ; but 

Mnd dfeat Mr. Harle would lend bim 450/. 

CI te credit of this note. Mr. Harle knew 
Mr. Edwards was a gentleman of great 
Mfit: il wta a promissory note of 800/. pav- 
dHi Is SaoBuel Edwards, esq. and indorsed by 
HavEl Gdwards : Mr. Harle made therefore 
adsA of advancing the money desired upon 
it The anaDner of adrandng this money was 
1^ Ihb Harle's making a draught upon his 
(PMhMm, Mesa. Caswal and Mount, where 
Mr. Brica received this money . Gentlemen, 
ttat wiH be evidence to charge this upon Mr. 
Uhl Gentlemen, the occasion of disco ver- 
iig im leiwy was this, Mr. Hales having 
M Cihen op in September last, ou another 
iasPWf of forging a note of Mr. Gibson's, 
feettA he was convicted last sessions, that 
chkI a pretty deal of noise. And, gentle- 
■ca,neh as had notes of Mr. Hales for their 
wswiiy, were alarmed ; Mr. Haile heard of 
liufasMog others, and the thing thus coming 
isheiaipured into, it appeared plain Mr. £d- 
««4k nd no dealing wiin them, but it was a 
faifery and an imposition both upon Mr. Ed- 
ewdsand Mr. Harle. We will call the wit- 
HHst, and then we apprehend, that the thing 
aQ speak for itself, and will appear a plain 
lM|cry. 

I$cr). Wkiimker. My lord, there are a pretty 
■say indictments, and Mr. Attorney hath 
•Msd the cause : therefore we shall imme- 
wdy caU the witnesses. 

noBMti Maddockt sworn. 

8n]. Wkiimker. Whom do you live with ? 
Uiddncki. Mr. Edwards, ^r. 
Unj. Wkitaker. Where duth he live P 
MU^oekt, In Dnke-strtet, Westmin!4er. 
M. Wkiimker. Where doth Mr. William 
Ukver 
MBddorkt. Within a few doors over-against 

way WkUmlur. Will yon give ns an ac- 
•M, whether Mr. Bales hath ever sent for 
49 ftaaka to year master f 

Msrfdtrto. Yea, 8ir, several times. 

I«i. WkiukBr. What nuumer of franks 
IhayP 



Maddockt. There was alwsyf some super- 
scription. 
Serj. Whi faker, Vho had them of you ? 
Maddocks. His man had them of me. They 
were sent bv him to Mr. Hales. 

Serj. Whitaker. Will ymi recollect whether 
there was ever any request to you, thnt tl.ere 
might be some only free without any euper- 
scription ? 

litaddocks. Yes, Sir ; there was in the be* 
ginning of July last. 

Serj. Whituker, How many were there of 
them? 

Maddockt. There were half a dozen. 
Serj. Whitaker. What came of them? 
Maddockt. I have five of them here. The 
other, 1 believe, is torn. 

Serj. Whitaker. Did you give them to Mr. 
Edwards? — Maddockt. Yes, Sir. 
Serj. Whitaker. What answer did he ffivof 
Maddockt. He said, when 1 delivered bim 
that message, that he never did such a thing ; 
and that be would not do them without a so- 
perscription. 

Seij. Whitaker. Were there any afterwards 
sent without a superscription ? 

Maddockt. About a week aHer he came 

again, and I told him, that my master would- 

not do it without a superscription. 

Serj. Whitaker. Were they after%vards left P 

Maddockt. Thejr were left with 'a young 

woman that is now in Court. 

Serj. Whitaker. Are those they that were 
delivered to you by her ? 

Maddockt. Yes, Sir : one is, I believe torn. 
Those are the other ^ve. 

Mr. Hungerjord. Have you been long ac- 
quainte<l with your master's business? 
Maddockt. Yes, Sir. 

Mr. Hungerjord. Have you ever known it 
to be his practice tu gi? e promissory notes ? 
Maddockt. No, Sir. 

Lord Chief Baron Pcngclly. It i^ proper 
you should ^ive an account where Mr. Ed* 
wanis lives ? 

Maddockt. In Duke- street, Westminster. 
' Lord Chief Baron. And where doth Mr. 
Hales live? 

Maddocks. Within a few doors, almost over* 
against Mr. Edwards. 

Jjord Chic/ Baron. How long since was it? 
Maddockt. I btrliere that it might be three 
or four years ago. 

Att. Gen. There were (I apprehend yoa 
say) several that were franked ? 

Maddockt. Yes, Sir, there were frequent] r, 
Att. Gen. How long might this continue r 
Maddockt. I believe several years. It was 
since the time of his living in our neighbour- 
hood, which I believe, may be about tnrse or 
four years. 

Att. Gen. Do yon know of any other bu- 
siness transacted between them ? 
Maddockt. No, Sir. 

Mr. Strange. You sa]^ that these coferi 
were brought and left with the maid. Vo 
you? 



S15] 8 GEORGE II. 

Maddocki, Yes, Sir, these are the same that 
were left with the maid. 

Mr. Strange. You saji yon delivered the 
fraoks to Mr. Hales's servant. Do you not ? 

Maddocki, Y<:8, Sir. 

Mr. Strange, What was his name ? 

Maddocki, Robert Hunsdon, Sir. 

Mr. StranRc, Did yoa ever deliver any to 
him himself r—Mia</£/oc^. No, Sir. 

Mr. Lacy, Had the franks that yon deliver- 
ed the whole superscription? 

Maddocki, Yes, Sir. 

Mr. Lacy, They asked you, whether there 
were any dealings between your master and 
Mr. Hales, besides this of letters. I would en- 
quire of votty whether your master acquaints 
you with bis dealings with any other persons f 

Maddocki. No, Sir. 

Anne Clarke sworn. 

Sen. Whitaker, Had you a note of direc- 
tions for letters to be franl^ by Mr. Edwards? 

Clarke, Yes, Sir. 

Serj. Whitaker. Who brought it ? 

Clarke, Mr. Hale's servant. 

8eij. Whitaker. What was his name ? 

Clarke, Robert, I think they called him. 

Bmrj, Whitaker, Do you know whose writ- 
ing it was? — Clarke. Vo, Sir. 

Serj. Whitaker, We shall, mv lord, call 
another witness to prove that it was Mr. Hales's. 

Serj. Whitaker, When was it? 

Clarke, 1 cannot say. 

Serj. Whitaker, Was it summer or winter? 

Clarke. Summer. 

Serj. Whitaker, In what month was it ? • 

Clarke. I believe that it Was in July last. 

Sen. Whitaker. Did you deliver them to 
Mr. Edwards f-^Clarke. Yes, Sir. 

Serj. Whitaker, What did you say to him, 
or he to you ? 

Clarke, I told him, that Mr. Hales's servant 
had left that paper of directions for the franks 
that he had desired ; and said that his master 
understood that he would nut frank them without 
a superscription, and therefore he had sent that 
paper of directions. He said then that be did 
not care to frank them, because Mr. Hales had 
both a brother and a nephew that were mem- 
bers of parliament, and therefore had no need 
to apply to him for franks. 

Serj. Whitaker. My lord, we shall now 

Erove the paper of directions to be Mr. Ilaies's 
and- writing. 

Mr. Booth sworn. 

Serj. Whitaker, Sir, Are vou acquainted 
with Mr. William Hales's hand- writing ? 

Booth, Yes, Sir. 

Serj. Whitaker, Whose wriliug do yon take 
that paper of directions to be? 

Booth, I verily believe it to be Mr. William 
Hales's. 

Serj. Whitaker, My lord, there is something 
Tery worthy of observation as to these direc- 
tions and covers. The covers are very large. 
Tht dinctuHii ar« extremely abort, e, g. for 



Trial of WiUiam Hales, 



[81ft 



John Pratt, esq. Bristol. The whole direcCioo 
is but one line, which wouM consequently leave 
a great deal of room. Another is to Mr. Lsvctt 
ofHuntiiMnlon. And there are two to each of 
these. The other two to Stephen Mitford^ 
esq. at Exeter. The man gave an acoonnt of. 
six covers sent to be franked ; there are two la 
each of these, which very well agree. 

Serj. Whitaker, You say. Sir, that thia it Ihi 
hand- writing of Mr. William llalea f 

Booth. Yes, Sir. 

Serj. Whitmker. 1 would ask, whether ilk 
common for a person that hath a p ium i — y 
note to write his name thereon ? 

Booth. I know not. Sir, that it is comHNB* 

Note of Directions read t 

Two to John Pratt, esq. Bristol. 
Two to Mr. Levett, Huntingdon. 
Two to Stephen Mitford, esq. Exder. 

Mr. Hcrr^e sworn. 

Serj. Wkitaker, Let the gentlemen of tha 
jury see the directions and covers. 

Serj. Whitaker. Gentlemen, you wiH slaano 
the size of the covers, and the shortneaa of Ihi 
directions just fitted for the purpose. 

Sen. Whitaker. Mr. Harle, please, Sr, la 
take that note in your hand, and give no ■■ ao* 
count who you received it from ? 

Harle. From Mr. Hales. 

Serj. Whitaker. When was it? 

Harle, To the best of my remembnuMo it 
was Juoe 13th last. 

Seij. Whitaker, Will you give us as oeosMt 
on what account it was, and what Mr. Haht 
said to you when he brought that note ? 

Harle, Mr. Hales on the ISth of Juno hH 
came to me, and brought me that note firoBi a 
gentleman. 

Serj. Whitaker, Where were you? 

Harle, To the best of my remembraneo, at 
Baker's coffee-house in Exchange Alley. Bo 
desired to borrow of me 450/. upon the cr^it 
of that note ; I accordingly made him a 
draught on Mess. Caswal and Mount, with 
whom I left my cash, fur that sum ; for a aoai! 
rit^ for which he left that note, and he pro* 
mised that he would pay it in a few days. 

Serj. Whitaker, Did he take any particolio 
notice of the indorsement? 

Harle. Not much J Sir. 

Serj. Whitaker. Was it then indorsed ? 

Harle. Yes, Sir, I am sure it was ; for I 
was desiretl to lend the money on a note so in* 
dorse^l- 

Serj. Whitaker, The note then, upon this 
occasion, was left in your hands alter that it 
was so indorsed, Was it uot ? 

Harle. Yes, Sir. 

Serj. Whitaker. U|>on what occasion did ife 
happen to be suspected or discovered ? Did yoa 
pay it yourself, or 3^ our golusmith ? 

Harle, Mess. Caswaland Mount, on wl 
I made a druuirlit. 

Sen. Whiiakcn HoTO you that dnnglftf 

HarU. Yea, Sir. 



« 



Jw a MUdaneoMor. 



MWHi^er. It h«Ui been deUtered up, 

USr-Jfarfe. Yci»8ir,aiMlcaiieeJled. 

44Kiibr. Ob wlmi occuioa ? 

[ «Ul Wkn I Mllle my ftceouuU with my 
illdwap ny Doiet. 
ittmgt. YMiwcrafoiiigtogifeiisan 
■Mtov yto aune to ratpcct thw note ? 
U Ilhnk it wu on September 9, 1788, 
tiMhrhiiifB Alley aU the morniog, toy 
IfiVfliig flw thither. At two 1 went 

, IpmmL It eeeois there woe a nieeiai^ 



WlOTMffvaiit fay Mr. William Hales, 
JitmfM U my iroldsmith 4S0/.» part ot' 






1^ 



'limf vUeh ho owed me; for be owed 

H^Moey on aocority. He weut to 

[|B«tptti tbcm thie money, for which he 

MiMHnodom that Iw uul paid them to 

Im^wmgy upon aeoowit. Goiog then to 

^ M Gmn, when 1 came home Mr. Cai- 

IM m what had happened. There it 

l^tad ihiM bath happened; Mr. WiL 

llii^ wilh whom yon baTe transactions, 

'b m Ibr forgery. He hath |>aid to us 

[W. upon your aecouot, which is at- 

* i«r bands. It seetna there was found 

•book a memorandum which gave 

Isf hie paying that sum to them. 

Mkiiahtr. Was this the first occasion 

[ isy fli o n ?'^HarU. Yes, Sir. 

. WkiUker. Wlvat did you do upon that ? 

JAl I bad naked a gentleman, now 

bmt,Maie daya before, knowing bim well 

with Mr. Edwards, and the affairs 

Eiebcquer, whether be knew Mr. 

I band- writing, and whether he knew 

bke Mr. Edwards's hand- writing? He 

4hMieved that it was. I indeed myself 

Mid tbat it was. Afier that Mr. ifales 

Vths up (I tbiok that it was the Weilnes- 

%t Tburiday after), I went up to the £x- 

d^tD that gtntlemau to get biro to go 

l||ieio Mr. Edwards. lie went up, but 

jftlbrirds was not there. ^Ve then weut into 

^hll, where we met with Mr. Kdwanis, who 

^Mrito be rery much Mirprised. As to the 

^faid be) I know notliiug of it. As to the 

H-writiag, be could not |>ositively say whe 

^ 11 VM bis own or not ; if (sai«l he) it is 

^ittsd, it is made an ill use of. We went 

^t'iilely to the coffee-house to enquire after 

«ihbert Hales, thence to the Cock- pit, 

Jl'lhice to his house ; but met not with 

J^l tben left Mr. Wright atui Mr. 

''irit. i told them that my buitiness 

^nd me to go into the city. They re- 

*N to meet Mr. liobert Hales, and enquire 

^h« whether it was bis note or not. 

L C. BcTOM. Head the note distinctly. 

X«te read, " Matf 18, 1728. 

** I promise to pay to Samuel Edwards, esq. 
* trur, the sum of eight hundred noutids 
*i|^ three months after dute, for value re- 
^hl. KoBERT Hales.'* 

bdofiement, ** Pray pay to the order 
of foryc value received. 

** ISamuel Edwards." 



A. D. 179^ [tlS 

Draught read, «* kt. Mess. Caswal and tfoont. 

«< June 13, 1798. Pay to Mr. William Hales 
or boarer, on demand, four hundred and Afty 
pounds. RoBBtT Harlb." 

X. C. Baron, Sir, you say that yoo are ae« 
qnaintcd with the band-if« riling of ftlr. EdwaMf. 
do you not? — Har/<e. No, Sir. ^ 

Att, Gen, My lord, we beg that the gentle- 
men of tlie jury will look upon the indor se * 
meut. But before it be put intd their hands, { 
would make an observation thereon . It ap- 
peareth by the end of the paper that it is cut 
off from something else. It is not straight as 
it would be naturally, hot seems cut off 0Miqae>' 
ly : And there is the tail probaUy of a letter 
of the direction of the cover whence we pre- 
sume it cut off. Then the wurds, * Pray pay 
to the order of,* at a distance from the othc^ 
words, * for the valoe received.' There is this 
material also, that the words * for the valne re* 
ceived' are not usual words in an indorsement ; 
when the words * value received' are mentioned, 
still more unnsnal to put in the word * the'. 
But the word ^ free' being there, there must be 
some way contrived to nse those letters : An e 
is therefore crowded in between the/ and the r : 
And tben the y seems to be a much blacker 
ink tlian the rest : And then as to the two re*!, 
the one of them the y is drawn from, and the 
otiier of them stands for the other part of the 
contraction. 

Serj. Whitaker. liook on it, gentlemen, and 
you will find it as mentioned. 

Att. Gen, Observe, gentlemen, over it them 
is a stroke or hook. 

Mr. John Spicer sworn. 

Att, Gen. Mr. Spicer, What employ meni 
are you in under Mr. Edwards f 

Spicer, A clerk, Sir, in the Exchequer. 

Att, Gen. How long in that capacity ? 

Spicer. About ten years in that capacity: 
But in ail I have served him for 24 years. 

Att. Gen. Have you known in all that time 
any mouey-dcalin^s between Mr. Edwards 
and Mr. itobert, or Mr. William Hales ? 

Spicer, No, Sir. 

Att, Gen, If there had been any, do yoil 
think that you bhould have known it? 

Spicer, Yes, Sir, I believe that 1 should ; for, 
as to affairs of that nature, 1 believe that J know 
as much as auy except himself. 

Att, Gen. Look upon that note. Do you 
take any part of that note to be his hand* 
writing? 

Spicer. The name is his ; and they I believe 
is his. As to the other letters they are so al- 
tered that I cannot say. * Value received' is 
not his. 

Att. Gen, Are you acquainted with his 
writing ? — Spicer. Very well, Sir. 

Att. Gen. Have you seen him frank letters? 

Spicer, Yes, Sir. 

Att. Gen. What is his method of franking? 

Spicer. • Free Samuel Kduards.* 

Att. Qen, Doth he write the word * lire^* * 



219J d G£ORG£ II. 

Spicpr. YiM,Sir. 

Att. Gen, What sort of/ doth he rnhkt?, 
' Spker, A sort of double /just such as is 
faere. 

Att Gen, Do you take the letter o to be his 
hand'Writiog? 

Spker, It is an altered letter. It was some- 
ihing else turned into an o. 

Ait, Gen. The r, what is that, doth it not 
«ceni to bare been another letter? 

Spicer, Yes, it seems altered from another 
ktter; but bunglinfflv done. 

Serj. Whitaker, We wiU^ my lord, call oueof 
Mr. Caswal'a apprentices to prove that th» 
^ught hath been complied with. 

Mr. George Branthwait^wom. 

Serj. Whitdur. Do you look upon that 
flight. 00 yoa remember whellier it was 
«?er brought to you, and by whom ? 

Brant^aU, I beliere it was brought by Mr. 
Hales. 

Serj. WhUaker. To your 

BratUhwaU, Yes, Sir, and it was marked by 



8eij. Whitaker. What had he for it ? 

Branthwait, He had ofme two notes. One 
was for 850/. the other for S90/. which was 
470/. and he brought besides this draught two 
notes of Wanley's for SO/, which made the 
balauce. 

Serj. WhUaker, Whom were they payable 
to? 

Branthwait, One to oue Calthrope, and the 
•tber to himself. 

£. C, B, You say there were two notes you 
ga? e him. Whom was the 250/. note payable 
to? 

Branthwait. To Mr. William Hales. 

L, C. B, And who was the 320/. note made 
payable to? 

Branthwait. To one Charlton Thrup. He 
gave me this draught of Mr. Uarle'tf tor 250/. 
and notes of twenty pounds. 

X. C. B. Whom did you say the 220/. note 
was onade payable to ? 

Branthwait. To one Charlton Thrup. 

Att. Gen. My lord, we have done with our 
evidence. 

X. C. B. Well,* what do you say to this ? 

5eij. Darnell. I have nothing material in 
mine instructions ; therefore, i shall not trou- 
ble your lordship. 

Mr. Lacjf, 1 take leave to observe, that it 
doth appear that no prejuilice is done by this 
note. The 450/. borrowed on it hath been re- 
paid. 

Att. Gen, Mr. Hales owed Mr. Harle uio- 
ney upon other accounts, and he had it upon 
account: And besides, it is attached in the 

S'oldsmith's hands, and it was on the very same 
ay that he was taken. 

X. C. Baron. Gentlemen of the Jury, this is 
an indictment against William Hales, gold- 
amitb, for a very great misdemeanour. It is 
for fbiging an indorsement on a promuiory 
note Ibr 600/. for the chaipog of the pcnon 



Trial of WaUamHakB, 

indorsing with the payment of this son 
tlie publishing of this indorsement as 
one, knowing it to be so forged. It is 
great offence, a misdemeaooor of the ! 
nature ; not -only as it afltos particuli 
sons, and chai^^es the person whose n 
made use of with the pay noent, but as i 
stmctive to all commerce : You are tfa 
to consider what account the defends 

Sive of it. The indictment sets forth tl 
efendant bad in iiis custody a certain i 
a writing, purportiiigto be a promissor 
with the name of Robert Hales; by 
note it was supposed, that Robert Halt 
mised to pay to Samuel Edwards, esq 
order, the sum of 800/. within three 
after date. And upon this, the chari^ 
indictment is, that the defendant, witfa 
^tion to charge Mr. Edwards with tl 
ment of the money contained in tbia ii 
note, and to delraud and deceive hi 
others, on the iSth day of June did 
and deceitfully forge and counterfeit a 
indorsement on thisnote in these Englisl 
following: ** i^y psy to the order of 
the value received," over the name of 
Edwards, as if subscribed to that indors* 
and, that knowing the same to be a fur| 
counterfeit indorsement, he published tl 
in order to deceive several persons, the 
subjects, as a real indorsement, as wc 
defraud the said Samuel Edwards, esq. 
in order to prove this, the counsel ga^ 
account of the circumstances of the del 
the character of Mr. Edwards, the ac 
ance between them as neighbours, 
shew you the circumstances of the fai 
have called several witnesses: Firs 
called a servant of Mr. £dwards*s, wh 
tiooed that he had lived some coosideral 
in Mr. Edwards's service ; during wbi 
the defendant, Mr. Hales, hath irequci 
several years, sent to Mr. Edwards 
franks delivered him in the name of 1 
wards, who hath for some years been a i 
of parliament, in order to send them 
the postage. It appears that this ha 
done for several years; and the usui 
was, when Mr. Edwards had received 
rection of the name of the person, he 
wrote the .whole superscription, and tli 
scribed to frank it ' Free Samuel Ec 
He tells you, that in the beginning of Ji 
several covers were brought to him for 
made up as you may perceive prett; 
The covers were brought orer to Mr. Ei 
bouse by a servant ot Mr. Hales*s. T 
sage was, that Mr. Hales desired soon 
upon these covers, particularly desirii 
to be franked without any superscriptic 
saith,that these were left in this numi 
were all delivered to a servant of Mr. 1 
with this desire, that he would on] 
thereupon *' Samuel Edwards free :'* 
rest might be left to be6lled up by Mr. ] 
be thought fit He tdb yoa, thai w 
mastor came honei hit maater tunriii 




M'udemtann. 



UmMiniiewholeiupef , 
lo ilo this; anJ 
r«m mnaiDnl wilbout frank- 
b wiihIiI nut ii(xi>iiim'Hlite 
Mr. Bile!, in ihal maiiDer wiili 
to kaad. uid Icate llie Test lilniik lur anutiier 
|MMUfi<l U|i us lip iliDuelit 111. This OUll 
imj p Wr iilly ilorir; Hr. EilwHrtIa, wlio in h 
■bAmm IB husDni, iiii|[|j| well spprtliend 
MINSfpi'ituiiily niit(bt Iw liereby girpn (o 
MHfw^tf* lliM H might nulbeiii l)ra)>ni*«r 
■•■nmul. Tliia, gentlemen, U made luc of 
>p«r uf an attempt bv ibe ilelrndanl. to gel 
Ntt wrl •■' I'rankt into hit power lo make uie 
#li Mcb n MriK>*« as (liii. The next wiineM 
iMtbry ulU It Ar>Ke CUrke, who Faith 
dMikitlilwiniea semnito Mr. Edwordf, 
wrillen Ij Mr. 
lat ihii was brought to 
of Mr. Edwanit, with a deure tu 
' fr«nk» liiiectfd lo cai^h of those 
*i> to Mcb ut' tbeoe lliree several 
Mite aailb, that it was soniR lime lait 



h4 i^ pniiiiKirib 
Bi^ m4 M<ih, il, 



M^M*. *l>e thintit atwiil July. 
te >bm her mtsurr. Mr. Kdn: 



Kite SI 



(titiog 



a bim : and Mr. Kil- 
ir accommodaiinff Mr. 
tlii-ae persons. The 
Ihli; Mr. Hale* (Mid 
a nepliew that are 



Mi ouh franki 
MBIhat iMfrave was ihi 
ItflMkbolii a braiher and 
•i^wa iif the HiniBv iil tJ»mmnna ; anij 
IhniM ha need mil «eud lo me tiir franks, 
^« ke vn»y bare Ihein from his own rela- 
tWI b* Umrhre declined il at Ihal time. 
Itat vera tin ilirectinnt : Two to Mr. Lervll 
4 laMiiiirdon, Iwo m Jidin Pratt. va\. at 
h»t,lHu to Stephen Mitt'iinl, e«q. at Biiilnl. 
takairii. to c^rrobnratt this evidence Uinl 
«»Ma nuc rroni the defendant Mr. Hales, 
kr.tlMilt It called. He ia aike<l. whether he 
•wdl aoqiMiiiled witli the hand-writing of the 
M«rfM>l,Ur. Ilaln? Hesailh tbalbeia, and 
iH bp •cnljr briiere* that this note Is bis 
tori.vntm^. It balh bt«n tririerTed by Mr. 
that there veeitiH to have beeii some 
tlwfnnn wherein it is wrote being >ery 
an opfKirtiinit; lor an alteraiioQ ; 
if ibaae directionn a very short, and 
«p U oMift but one line on the su- 

oaUnUrot tlie cover; ihal there 

m a conaldenble space lelt, so 
e, MaiDurl Edwards, ivna wrulr, 
^■B wuold bate been a sulficient space oi' 
na In wnte a note nr any ihintf oter it. 
BM b the afaierraiion thai hath been made 
^Xlbia no«i- •■' drmlions. Aller this they 
fttta Mr. Kiitirii Hifk', who it secretary to 
tiwOsM bank, !■> hiirpm In the jiarliculaT 
k. Ue wilb, that thii note wn« on the )3lh 
'lancUit brau^ht and delivered to bim by 
kiMn4a>t Mr. \Vitl>am Hale*. He sailh, 
kt he was then d1 Raker's mifiee- bouse in 
h*Mfp-alUy : ibut Ibe dufcndUDI, Mr. 
■A^ ^nM la hini, «iid produced Ibis very 
%tf WWt. payablr to Sniniiel Edwards, mq 
~" "■ lubsmbcd Robert >lah>«, 

" iidwardt, 




A. D. 17S9. 

iitd de«ired him lu advance bin i50!. upon llie 
credit of that note; Ihal seeing a proinisaorf 
Dote njnde payable lo Numiiel Eilwnrda, esq. 
-.nit imloneit by the said Sninuel Edwards, esq. 
Ilia appeared to him «ii<iioieut seouriiy lu lend 
4Si)f. upon ; Ihal tie did tltereupon cnntply 
>vilh ilierequnt uf the dufemlaat, Mr. Willinoi 
Hales, III ndvsiice bim thaltumi ihatbedr«w 
a draught lor i( an Casual and Moant, wbo 



settling of his accuootii with bis goldsmiths ; 
that at that lime when Ihe defendaut brouKbi 
this note to him, this very note woa delivereil 
la him, with tbis very indursemeiit Ihal is novr 
upon it, 

" Tray pay to llie Order of for j« 

value r<:cdred Simuei. Edwards." 

lie saitb, that he is sure that it was (bus in- 
ilcirsnd when il was left with him, he being de- 
sired to lend Ihe money on a note si> imlorsed i 
Ibat it hath l<een in his cnstody ever since, sn 
chat he ia snre iliere hath been no alleralton 
made tberean since lliat il itas delivered unin 
him. You may n'membrr that he was parti- 
GiiUrly asked, are yon sure that il was indnrwd 
when il »as delivered you? Hesailb that b* 
is sure; and indeed the thing bespeaks itaelf. 
' n'hen a note is made payable to a particular 
|)efBon.if any other person brings il, every one 
expects lliat Ihcrc sbotild b« an initorsement 
to inlitle any pertiiin that Is not the very person 
to whnm il wni made payable. 1 am there- 
fore lure (saiih he) ihal it was so indorsed: 
anil Bs Mr. Edtrards was a iierson of rerj 
great dealings and considerable sulislance, anil 
BO likely to liave sach a note made jnyabla 
to hira, I therefore gave credit to this note aa 
a sufficient security to reimburse me the ihQt, 
i*hiGb 1 advanced thereupon.' This tact ha 
tells you was thus transacted at thai time; 
and he ia sure that he received it from Ibe dc- 
feiidant thus inilorsed, and that the drtendant 
hath hail the benefit uf the draught which ha 
gave him on the credit ihereol. Mr. Harle 
hath ullowed this in settling his account* with 
his goldsmith. Upon ibis the nule hath been 
read lo sbeir you the purport thereof, and the 
indoraemeni thereon. The note is this, 

" Wau J3, 1728, 
*■ 1 promise lo pay to Samuel Edward*, esq. 
or order, the sum of eight hundred pounds, 
within llitee tnoutb* after date, for value re- 
ceived. " RoaERT HtLEa." 




Tlicn upon the back of Ihe m 



elben 



stbit 



Mr. llarle goelb on In the account which be 
gives you, and snitli thai Ibis nule was leti ia 
his hands in June ; and that ou Sept. V, after, 
he was in Ekc ha age- alley aJI the luorniug till 
bIhiuI two ; that theie was a message left for 
him at Uakci't colTee-hoiite, bat he received jt 



8CS] 



3 GEQKGfi n. 



not there ; that he went honie, and heard that 
there was a message left for him hy the de- 
fendanc, Mr. Halei, at Baker's coffee- hoasej 
that he went out in the afternoon, and had 
not a particular account of the message till he 
came home. The message was mm Mr. 
Hales, that he bad that morning paid to his 
goldsmiths Caswal and Mount 45o2. on his ac- 
count: Mr. Harle tells you that there was 
more money due to him on security. So much 
money was then pai<l in discharge of so much, 
part or money advanced by him to Mr. Hales, 
and It wss the exact sum which had been 
advanced on the Idth of June on the credit of 
this note. He tells you, that in the erening 
Mr. Caswal came U> biro, and told him there 
was a melancholy account, that a sad accident 
had happened: for Mr. William Hales, the 
person tnat had paid them this money on his 
account, was taken up for forgery, and this 
money was attached in their bands for to pre- 
yent bis issuing it out. Mr. Harle tiills yoo, 
that this was the first discovery that bo had of 
the particular fact, that gave him oecasion to 
make the more particular enquiry : he had in- 
deed two or three days before sfioke to a ^n- 
tlemaa of the Exchequer, one Mr. Wright, 
Imd shewed him the indorsement ; and having 
tooaesttspicioo, asked him whether lie was ac- 
qaauitnl with Mr. Edwards's hand, and whe- 
llier be thought that that was his hand- writing ? 
Mr. Wright tho«g;|it it was a little odd, uav 
joaMbiog di6Ment, but believed thai it was 
Mr. Edwanls's hand, aa Mr. Harle himself 
also thooght that it was. He saith, that after 
Ibat the defendant was apprehended, he went 
to Mr. Wright to desire him to go with him, 
that they might have from Mr. Edwards more 
particular satisfiiction. They went and met 
with Mr. Edwards, in Westminster- hall, 
shewed him the note, asked him whether he 
knew of it, and whether it was hu indorse- 
ment? Mr. Eilwards waa very much startled, 
end said, that lie never gave any such note, 
and knew nothing of it. Mr. Harle asked him 
whether the name wss bis liand- writing? He 
said that if it was, an ill use waa made of it 
Mr. BUwanIs took a copy of it, and kept it 
by him. The note hath been read to yoo, and 
appears to be a promissory note in the name 
of Mr. Robert Hales, for 800/. payable in three 
months, to Samuel Edwards, esq. The iudorae- 
meot is 

** Pray pay to the order of for y« 

value reoeived, »Samuel Edwards." 

Gentlemen, Ufion the producing and reading of 
this note, Mr. Attorney bath made several ob- 
servations on the manner of m riting it. You 
have bad the inspection of it, and something 
very' particular appears to every one's view. It 
is by the uounael for the prosecutor supposed, 
that this mtie must be formed from part of a 
iraok cover signed * Ifree Samuel Edwards,' 
Jfree being turned ■ into far ^ value received ; 
that there is the Foraainder of anoiher letter. 
Awl yen may ehs^iTe erbethcr there is east* 



Trial of WiUiam Hales, 

▼edge or any thing of that oatvte, thi 
h to have been the outside of a sheet 
All the edges indeed seem to be so 
dean as a paper that is cut. Th( 
ment begins, « Pray pay to the ordei 
for' then comes y«, and then a laigi 
between that and * value received.' 
seems pretty extraordinary if any 
honestly writing, and had a paper not 
before, that they should write in thi 
that the word y« should be tacked to 

* for,' and put at such a distance froi 
reeeived.' * Received' follows * vali 
diately in a more plain writing : be 
unusual to make use of the word 
*- value received ;' but they say it is 
nerally * value received.' You ha 
stance in the note itself; the conclui 
note is * value received :' and I belir 
aervation is just ; that it is not so us 

* For ye value received.' But the ol 
of the counsel was this, that there v 
cessity of this in order to aocomm 
leuers to the forgery ; as the words 
they exactly suited. And, gentlem 
is of a paler ink than the or, and thi 
thicker, and seem of a deeper ink. 
were two m's before, the alteration an 
the other letters roust occasion the tb 
these letters, and their seeming of 
ink. Other letters being to be supc 
they^ must of necessity be thicker ai 
than the first letters. Here is a ver 
sort of an r, and the o seems very 
the end of the r is something made 
assist to make the upper part of the 
doth not stand cleverly. And you 
that part which is the head of the 
thicker than the other part that mal 
y. And then on the side or one si 
the y there is a sort of e put. You 
how improperly it stands. It is not 
rectly over the y, which is the way 8 
of writing ' the' short; but it com 
bottom ot the head of the y. So tha 
men, these are the observations that I 
made by the counsel. You have 
note, and may observe upon it, wh' 
think these observations plain, proper 
Upon this occasion, another servai 
Edwards is called, one Mr. Spicer. 
that he hath been a clerk in the £ 
above ten years, but in the whole in 
wards's service upwards of 30 yeitn 
is well acquainteo ivith bis public de; 

Krivate transactions in money- matters 
e never knew or heard that he had an 
dealings with the defendant, which h 
he should, if there had been any, being 
and acquainted with his muney-dealii 
he saith, that as to the name Samuel 
be believes it to be Mr. Edwards 
hand- writing, being very well acquai 
his hand. And he saith, that as I 
doTMflMBt, he believes that the / k 
Aot the other letters ; that he is aati 
< ?atae KOBived' is aoC Mr* Eds m d a ' 



i 



tiSj 



Jw a Misdemeanor* 



A. D. 1729. 



[S26 




And he nitht that the o aud r he doth not 
tike In be Mr. Edwards's hanJ-writiogf, but 
w akcffatioD from lonething that Mr. Ed- 
wards had wrote before ; that the osual way of 
Hr. Edwwde frankiiiff iv * frce^ with a ^ as 
ynjfree ; and that the o appears to be made 
art tf an altered letter- So Uiat this ia a 
fnfet tbscnration, that there is ao alteration, 
M ihcjf batiere upon their oaths. He saith, 
thUja.kuifirUnffly done; that he apprehends 
been mentioned. AVeJI, ano« 
called, Mr. George Branth- 
t to Mess. Caswal and Mount, 
that thia draught was brought to 

r bj the defendant himself, becanse 

ke kath pot bia mark upon it, as is proper for 

BMsas of aoeh deaiings ; that that mark of 

Hsl Ibc bottom remmds him that the defSm- 

tet hro ugl it it. Upon the bringing of this 

ti^bf, be bad two notes from this witness 

SB aeeount of his master ; one was for S50/. 

Ar SSO/. : that came to 470/. : there- 

ihe deficiency of this draught was to be 

' with another to make up that sum 

. Therefbre, he saith, that he brought 

df Wanley*s for 30/. which made up the 

The note tor 250/. he saith, was 

laajable to the defendant himself; and 

ite it 990L to one Charlton Throp ; and 

ta al tfaia time the draught and Wanley's 

era delif ered to him for these notes on 

afileal'. Caawal and Mount. T^is is 

«it given by them. The defendant 

and nis counsel are here. Nothing 

is aaid by them in defence, only Mr. 

lacy osentioneil that there is no damage done 

ky&isDOto. the 450/. borrowed on it being 

icpai To this it was replied by Mr. Attor- 

SIT. thai the money was paid upon account, 

fkin being other monies due to Mr. Harle on 

MBsrity; and besides it is attached in Mr. 

Hirie't goldsmith's hands, to prevent its being 

iMcd out. Gentlemen, you will observe, that 

iftlus was a real indorsement, it would be an 

Mwr anc e of pacing the whole debt Who- 

Mwer iadoraeih a note, whereof no part is 

fH4, is liable to the whole. Therefore the 

^oKtioQ is not, whether or not this money was 

ptJ' But whether here is not an engagement 

tipay the note, which the re -payment of the 

y borrowed thoreou is do fence against f 




Therefore if the money had been repaid, that 
had been no acquitting of the crime. That 
will no more discharge a person, than if a 
felon should say that he is acquitted because 
the goods are restored. The behaviour after- 
wards is not a sufficient acquittal of a crime. 
And consider when thai was. It was not 
before, but upon the Monday, the very day 
that he was apprehended. Then the message 
was left, and the money paid. You are to 
consider, therefoi^, whether this did not arise 
from an apprehension and fear of a discoveiV« 
in order to clear things as well as he could ? 
Gentlemen, as there is sufficient evidence to fix 
this upon the defendant, so hath he not proved 
how he came by this note. lie bath not called 
one witness to shew that he had any money- 
dealings with Mr. Edwards, or that he received 
it of any other person ; but it is left on the 
evidence given by the prosecutor. Therefore, 
there can be no doubt in the matter. If a 
person is silent to t^ie charge, and cannot five 
you any satisfaction as to it, it stands as tuUy 
fixed upon him as if any had seen him write 
the indorsement. Therefore, gentlemen, you 
are to consider, whether any thing appeara to 
aflbrd the least presumptiou that this waaa 
true indorsement made uy Mr. Edwards, for 
value received by him? It is, gentlemen, an 
offence of a very heinous nature, and, if not 
suppressed, must tend to hiotler all commerce 
by bills and paper-credit. If this be suffered 
to increase, none can take such a note, unlesa 
he goeth to the person himself. It will render 
it insecure to carry on commerce by notes or 
bills. As to au indorsement of this nature, 
though it was not mentioned, it is proper for 
roe to take notice, that though the name be 
not named, it may be made to any person. 
The person, in whose possession it is, can go 
and receive the money. So that the indorse- 
ment is complete authority tu impower the 
person in whose possession the note is, to re* 
ceive the money, and likewise to charge the 
person that so indorsed it with the ie-imburse« 
ment of the money. Therefore, gentlemen, 
the crime and offence seems complete. U|M)n 
this evidence, it doth not seem to me that there 
can be auy doubt with you^ whetlier he be 
guilty of this fact or not. 



▼OL. XflL 



897] S GEORGE II. Trial of Wm. Hales, far a Misdemeanor. 



473. The Trial of William Hales,* fot a Misdemeanor, in 
taining the Sum of Four Hundred and Fifty Pounds, 
Mn William Harle, by false Tokens rf 3 Georgi 



A, D. 1729. 

Jury sworn ova agaiD. 

Clerk, OyEZ, Oyez, if way one can in - 
Ibrm, &c 

Gentleiiien of the Jary, William Hales ttaadt 
itidicted by the name of William flales» kc, Ibr 
falsly and deceitfolly obtaining the sum of 450li 
of Mr. William Harle by a false token, to wit, a 
promissory note in the name criT Mr. Robert 
Hales, whereby the said Robert Hales is sup- 
posed to engage to pay within three months 
afler date, the sum of 800/. to Samuel Edwards, 
esq. with a counterfeit indorsement on this note 
to the great damage, &c. To this indictment 
be hath pleaded Not Guilty. 

Mr. Strange. This likewise b an indictment 
iigahist the. defendant Mr. William Hales, and 
is for falsely and deceitfully obtainmg a sum of 
money of Mr. William Harle by a false token. 
And it sets fbrth, that the defendant haying in 
his possessioo a promissory note of Mr. Robert 
Haies's for 800/. payable m three months afler 
date to Samuel Edwards, esq. with a fbr|g[ed in- 
dorsement thereon in the name of the said Sa- 
muel Edwards, esq. did falsly and deceitfully 
obtain of one Mr. William ftarle, the sum of 
450/. on the mid note. Tliisis laid to be to the 
great damage, &c. 

Mr. Hungerford, May it please your lord- 
ship, the fact charged is the ?ery same as in 
the former cause already heard, only upon a 
different law, Sd Hen. 8. There was, it seems, 
•o long agone an abominable practice of ob- 
taining money by false tokens. The act of par- 
Kameut hath prphibited that practice, and made 
It penal. There is but one witness we shall 
trouble your lordship with. 

Mr. HarU sworn. 

' Mf. Hungitford, Mr. Harle, pray gire an 
account to my lord, and the jury, when you 
first saw that note, and what money you paid 
«pon it. 



» > I ■ 



* See the preceding and following Cases. 
f These Trials were taken in short- hand bv 
•rder of Mr. Edwards. Farmer Ediiion, 



Harle. On the 13th of June, Mr. 
applied to me, to lend him 460/. npc 
note. I accordingly made a draught • 
goldsmiths, which I suppose was pa 
saaae day, haf mg taken up the drau| 
settling mine accounts. 

L. C. B. Pengelly. Mr. Lscv, do you 
that they should go on further in the 
dence? — Mr. Loc^. No, my lord. 

L. C. B. Pengelly. This indictm 
against William Hales, goldsmith, ll 
ootaining upon this note a draught equ 
to money, and which afierwards pr 
money, oy this false token. If the no 
forged, it was a false note. He brouo; 
note as a good note, to induce Mr. Harli 
commodate him with 450/. thereupori. 
is the description of the act of pari! 
that if any one by a false token doth ob 
gel any thing or any goods of another*! 
poral punishment shall be inflicted, 
appear to be a forged indorsement ; tbL 
a ndse token, he must be guilty.* So t 
evidence is the same as to both these 
meats. 

The Officer sworn to keep the Jur 

Clerk. Gentlemen, answer to your na 

Jury called over. 

Clerk. Are you all agreed in your ver 

Jury. Agreed. 

Clerk. \vho shall say for you f 

Jury, Our Foreman. 

Clerk. How say you, Is William 
Guilty of the misdemeanour whereuiti 
cbaiged, in forging and publishing an ii 
ment on a promissory note, or not Guill 

Forenum. Guilty . 

Clerk. How say you, Is William 
Guilty of the misdemeanour wberew 
stands charged in obtaining money by 
token, or not Guilty f-^Foreman, Guilty 

* As to this, see East's Pleas of the i 
chap. 18, seel. G. 



Triato/fl'm. UaUi and T. KinnenUy. 



iT^. The Trial of William Hales and Thosias Kinneuslev, 
Clerk, for forging aod counterfeiting a Note of Hand, bear- 
ing date August \6, 1727,* for Twelve Hundred and Sixty 
Pounds, payable to Samuel Edwards, esq. or Order, signed 
Thomas Kinnersley, and indorsed Samuel Edwards : SGeouge 
U. A. D. 17Sy. 



imy called orer ikg:iip, and tworn. 

Cn^. 0YE7^ Oyw. If any one oan in- 
km ny InH Uie kin^'i rnMice, ibe king's ser- 
^■•^•tknmry. 3cf. ui ini> rause between our 
■w uii y u \orA the king and W illiim Halei ami 
IkoM KionecBley, let tbem come farlh, See. 
Vu* ihc loaticunent ww read. 



lb.Srrdafc Geutlemeuoflhejuiy. This 
•U iaifteliiical ■^■imt ibe two priHOUera si 
ftihr, fTjllum Hales uf Londun, lale golil- 
^itk, aad Tbotnu Kiuaerslvy, clerk. Tbe 
Woiacsl acts furlh Ibatthese livo defendauts, 
hMfftnons of ill Came atiil reputation, and 
^■iif iDil iDleoding 10 derrand Samuel Ed- 
■w4,(Ki. aod divers other bis majesty's sub- 
^■■,01 Mttreb last had in ibeir custody a cer- 
MM(B IT • writine' purporting to be a pro- 
■■■rj auto aigned by Tbumus Kinneraley, 
miitiM Aog. 16, iTar. lo this noteTbo- 
^Sjoner^ey >* suppnaed lo promise to pay 
UUJ. USaniiiel Edwards, esq. wilhb three 
■atamfter date, far ralue receiied ; that on 
AaMtewbicli they bad in their cusloily,lbey 
A^ so io<lor«eineul in Ihew words, " Pray 
fU la lli« onlcr ol' fur Tal ue re- 

omri, Samuel Edwards ;" that thus bating 
aMreaMAdy Ibis note with this forged in- 
^UMMiM iberrufioii, and knowing this to bea 
h|tri isHlimeuieDl, Ibey did afterwards pn b- 
U il to bn a true one. These oRrDcea are laid 
I (Teat damage of the said 8amueJ 
— t tbe breach of his majesiy's 
I fill example of other his majts- 
I like case offendine;. To Ibis 
' have pleaded Not Guilly. 

Gcnrrat. Hy lord, and gentlenien 
•f the jury, I am of counsel on the same side 
ki mj luTil lh» king. Genilemen, the charge 
IpBl III* defendant is for forging an initone- 
■aMoa • ppTmibsory not* for 1,S60/. Like- 
aatlkn arcchargnl willi publishing the said 
Malrriat JBilorwiiient for a true nne, know- 
^ iW MUM to be forged nud counlerteii. 
taltMea, tbu i* nut the tint of sereral facts 
1 9m ■■liisr thai have come to he cuniidered 
qk tagard to tbe defemJHDt Mr. Halei : but 
%lntllHl hath corib lo be examined in (hi* 
ilrfendoiit, Mr. 




fm ibargad upon tlx 
liwmUy, a dwgytn 



* &B Ifee fnetAng uul Mowing Cbks. 



lancholy thing that when a scene of fiirgeiy of 
■Ilia uature is going on, which as you bavd 
been told is uf a very [leiDicious nature lo trade 
and commerce, we lihoutd see nne chartrcd 
Iherewilb that halh a right to a[i)iear in that 
habil, and thinka til lo appear here in it. Uut 
it Hill appear that there is jiifl ground to charj^a 
not only the defendant Kales, but the defenibnt 
Kinneraley. Gentlemen, as to Ibe fact, it will 



I that i' 



n thes: 



tbe former fact ; that by Ibai corresiiondence 
ti>at Mr. William lU\es thought tit (n let him- 
self into with Mr. Edwards, by applying fi>r 
frank covers lo send news into tbe coiintry, be 
look occasion tu make use of such a paper ; 
and that there bein|; an intimacy between him 
and Mr. Kinnersley, Mr. Hales having by Ibia 
means possessed himself ofa frank cover with 
tbe name of " Samuel Edwards, flree " there- 
on, Ihat u|Hin a piece of ibat paper cut otT from 
tbe rest, a promissiirv note is wrilleu. I lake 
it lhat the note will appear to be tbe hand- 
writing of Mr. Kiiinersley, dated in a different 
baud, Aug. 10, 1737. The words are these : 

" 1 promise lo pay to Samuel Edwards, esq. 
or his order, three monlha after date, ihe autn 
of twelve hundred and sixty iioundi, for tha 
value received. TiiuM.ts Kikhekslei'." . 

On tbe back of Ibe paper these circumstaDCca 
will appear : fiisl, the edj^e of ihcpHper on Ihat 
lide uf it where the indoraenient ia wrote ap- 
iiears cut offi and as in tbe furnier cose, ao 
here there are tbe tails of two or three letter* 
still remaining plainly to be seen. And it will 
appear that here is an irregularity and uneven- 
oe*E in the culling ; the edge in one placa 
smoother btiiig lurued in, aud en book or deul 
made in lite paper. Under Ibis, pretty near 
Ihe top of the paper, is written, " Pr^y pay lo 
the order of," then there Is a wide blank as in 
Ibe former instance; then follow tbe words, 
'■ For tbe value received, Samuel Edwards." 
It appesTb that the words " for the " are writ- 
ten in a sironger and blacker ink than the 
former; the/of ilie former sort, probably Mr. 
Edwards's. "The word " Ihe " is not wrilteu 
in a contraction ua hetbre, but at length. Here, 
iustead of changing leltera, erasing or turning, 
are leliers wriiien over in a blacker Ink ; iha 
other letters, aa the two re ajipeit in a palsr 
ink ; BO ilial it will appear to a ftenioDslrutii-n 
ibat this was a frank turned to this use. <Hh*r 
ubeervatioD* will likewiie appear as Id tb« 



i 



227] 



3 GEORGE II. Trial of Wtn. Hales,, 



473. The Trial of William Hales,* for 
taining the Sum of Four Hundred 
Mr. AViUiam Harle, by fake 'J 

A. D. 1729. 



4f.UMTtle!f 



ai thai il 



. 3 ipprebeDJ lii 
:gnind«d nnd cai 
tsa. il will >f>li< 



Jury swoTD orer agiio. 

Clerk. OyEZ, Otm, if any one can in- 
form, See. 3 "^ S 

GentlenienoftheJory, William HalMriaadi 
indicted by Die name of Witliara Hales, Sec. fbr 
lalsly anil deceitfully obtaining (be autn of 450^: 
of Mr. William Hsrle by a tiTM token, to wit, a 

frnmissary note in the name of Mr. Robert 
Tales, whereby the laid Rahen Hales ia sup- 
posed to engage to pay within three months 
alter date, the sum of 800/. to Samuel Edwards, 
esq. with a counterfeU indonement on tbia note 
in the great damage, &c. To this indictmeat 
he hath pleaded Not Guilty. 

Mr. Strange. This likewiae is an indictineot 
agimst the defendant Mr. William HalM, and 
is tor faliely and ileceitTully oblaiuing a 
money of Air. William Hariebyafal* 
And It sets forth, that the defendant fai 
nu nossesiion a promissory note 0I 
Hafes's for 800/."payable to three ., 
dale to Samuel Edwards,^, with-., 
dorsemenl thereon in the name of tlie 
trnitl Edwards, esq. did falaly and 
olHoio of one Mr. William Harle, L... 
A'Ml. on tlie said note. This is laid U 
grent damage, &e. 

}\t. UangerfoTd. Hay il please 
>hi|i, the fact charged is the Tery t 
the furincr cause already heard 01 
dilTereat low, 3a Hen. 8. There 
to long Bgoue an abomiuablc pi__ 
laming money by false tokens. The . 
llament hath jtivhiUiicd that practice.i 

Il penal. There is hot one -■■ 

trouble your lordship with. 

Mr. Hark •wnrii. 
Ur. Ilungirfvrd. Mr. Hurli 
account lo my lord, and the 
fir^l saw that note, and what 



•1 dcr ol" Mr, Lilwards. Fvim 



Hark 
applied 

■"l^" . ii^im^tiay Uiinff, 

«"'*''" '^eflhe: 

^"? • ^lii'baiMl.wi 
•^;l'- ^*^ brief be _ . 



th 



■d-wriUng. II. 
f be rigCt, iba 




pAalwe shall lay before 

— *^ of a|)ptyil^; to Hr. E 

anner of making ihia m 

^^bI, the DM be made of il. h 

-^d«iMmting ofitoaa true to < 

■ ^iitppeanoD ihefaceofit tub 

II will appear plainly agains 

aeemevl in the forgery, 9 

n of it. A> lo the oiher 

_ ~" nneraley, the circ 

' ^ I have meotianed will make it 

' ^^ and be as strong eridence ag 

'--It the other. 

gm. Wliilaktr. I will not lake 

Hvnrdsliip's time, then: lieing ini 

fittis; but aliall immediately cull 

ma. 

Jtmet Maddax and Am 



art he inserted over again,] 

yir.Jakn SpicerM\ 
8(^. WlUtaker. Look upon that 1 
Ml acquainteil with Mr. Edwart 
n™r__S;>ifer, Yes, Sir. 
San. Whilakir. How long have 
MnwiMed with it? 
^^kv. Twenty-four years, Sir. 
Smj. WMaker. How hug lia*e t 
Mtwlumr 
Sfktr. Between ten and I'lnun y 
%IQ. Wkitaktr. How much ib h'i. 
J^icr- Samuel Edward* and the 



] 



for a MisiUmeanw* 



Sfri. Wkitaker. Very well. As to the other 
kttnt, whit are they ? 

flaki e r. Some of them seem to be written 
tver ether letters, which I suppose were pert 
ef Ihe word * free.* The r seems visiblt he« 
Ivettlhtond r. 

Mr. Strange. What was his method of wiiu 

Efiut. With a donUe /, jast as it is here, 

tk, Amge. Did ^oa ever koow him use 
itasid Fraak f^^^wer. Never, Sir. 
A9. Wnutaker. You say that }-o« haro been 
■MHMd as derk between 10 and 11 years. 
Vnyon ooneemcd befofe for him ? 

^BiSBr. V OB, CnT* 

fhq. Wkitrnker. lo what business f 

As to Ma pivsae affairs in town, cash 

I, and many of his vents. 

WAUmkgr, During the time that you 

aeqwuntcd with Iris prifate transactions, 

understand tnat there were any 

in asoney affiurs between him and 

. No, nsfver any whatever. I never 
as heard Ins name in the family. 
1^. WMUmktr. Did you ever know that Mr. 
iMds used to make a practice of indorsing^ 
■f Ukar pcffion's notes, or of giving' pronrn- 
•wislsn ? Sfke r, No, Sir. 

IHJ. WkiiakeTn 1 believe you will all be 
omiMBd that M is his hand -writing. 

MkMnfej. 1 admit, Sir, the whole body 
tf tensle to be mine own band-writing. 

■r. 8ir0ng§, Look opon it before you do 
in We desire nothhig but what is fair. 
Mamersley. Yes, Sir, I admit both the fi- 
en the top, and the whole note to be 



faj. Whiiaker. Gentlemen, yon will ob- 
mveAat there were but 3 months mentioned in 
AcBSle. The note is drawn August 16, and was 
m brsoght till March 90 after, so that the 
vWIe time was long expired before the note 
mi left with Mr. Bird for the money which 
What upon it. 

Mr. Strange, I verily believe, my lord, the 
and note to be both the same hand. 



Mr. William Wright sworn. 

^myWkiiaker, Sir, were you at any time 

Ih Mr. Kinnersley and Mr. Edwarch, and 
an there any diseourse passed between them 
ikMt this note? 

Wright. When Mr. Kinnersley was exa- 
' before sir Richard Hopkins, he there 
it to be his own hand- writing, butli the 
1* and indorsement. 

faj. Wkiimker, But give us an account 
*Wdier he was going to make a confession, 
m4 whst was aaid upon it ? 

Wrigh. As soon as he said that tbc note 
ta sH his hsnd-writing— ' 

L C. B. Ptngelly, And what did he say be- 

J^fiifU. Wbtl he said, my tord, as to the 
WM sftarwii^ As soon u he 



A. D. 173a [SSf 

I Kaid that the note was all his hand-writing, Mr. 

i Edwards asked him, Why he drew the note 

! payable to him, when there never had been 

any dealings or negociations between them P 

Serj. WhUaker. What said Mr. Kinnersley 
to that ? 

Wright, He said that there never had been 
any doings between them, either before or 
since the making of the note payable to inm ; 
that he did not know Mr. Edwaros, nor, except 
that time before sir Richard Hopkins, had not 
seen him. 

Serj. Whitaker. Pray, Sir, give ns an ie- 
eount how he was prevented ffoing on. 

Wright, He opened himself in this manner : 
that he was indebted to Mr. Hales m that sum, 
and more, and that Mr. Hales desired him to 
give a note of his hand ; that he asked Mr. 
Hales to whom it should be made payable? I 
replied. It is very unusual to ask tliat. It is 
sure natural for a man to make it payable to a 
person that he owpth the money to. I said. 
Sir, you seemed before to declare yourself an 
unhappy person, an undone man. 1 asked him 
the reason ; and upon that Mr. Mitford, who 
was with him, said, You shall not go on to de» 
dare any thing further, yon may do younelf 
an injury. 

Mr. Strange, Did he say at that time, that 
he saw any thing on the back of that note ? 

Wright, As soon as he had declared the note 
to be his hand -writing to Mr. Edwards, and 
Mr. Bird had shewed the note to Mr. Kinners- 
ley, he was asked. Whether he knew of thai 
indorsement of Mr. Edwanls's hand before he 
saw the note? He said, he did know of the in- 
dorsement thereof, but knew not how it came 
there. 

Mr. Strange, How did Mr. Edwanis ask the 
questi<m ? 

Wright, He asked Mr. Bird, Did Mr. Kin- 
nersley own the indorsement before yon shew* 
ed him the note? 

Mr. Strange. Sir, you do not apprehend the 
question asked you. What was the qnestioii 
that Mr. Edwards asked Mr. Kinnersley ? 

Wright. Whether be knew of the indorM- 
ment before that Mr. Bird showed him the 
note? 

Mr. Strange. What did he say? 

Wrifiht. lie answered that he did. 

L. C. B.. Was that all that he said ? 

Wright, He said that he had had sereral 
dealinj>fs with Mr. Hales, which was the cause 
of bis drawing that note in that manner. 

L. C. B. But what did he say concerning 
th(! indorsement? 

Wright. Mr. Bird said, tbat before he shew- 
eil Mr. Kinnersley the note, Mr. Kinnerslet 
said that there was such a note of his hand, 
with such au indorsement. 

L. C. B. Hut what was the answer that Mr. 
Kinnersley (jave Mr. Edwanis ? 

Wright. Tiiat he knew of the indorsement, 
but knew not how it came there. 

Mr. Strange. Did he, Mr. Kinnersley, men- 
tion the indorsement himself? Did be say, 

4 



935] 



9 GEORGE II. Trial of Wm. HaUs and T. Kinnerdey, [SS( 



whether he law the name before hit writ'uig 
the Dute ?-— Wright. Not tt that time, Sir. 

Mr. Siranse. Did he at any other in your 
heariiisr? — li'righi. No, Sir. 

!ilr Estrange, When Mr. Mitford ttopt him, 
^as there uuy discourse afterwards whoaa 
hand-writing the note naight be; was there 
any dispute? 

Wright, Sir, the company broke up then, 
when Mr. Mitford had given him that caution. 

Sir Richard Hopkins sworn. 



Serj. Whitaker, l^r Richard 

Mr. Xocy. 1 would beg first to ask sir Ri- 
chard, whether this examination %vas reduced 
into ivriting ? 

Sir R. Ilo/ikint. I always take a memoran- 
dum in my book of what is said upon an exa- 
mination. Tliere was none other examination 
in writing, but my memorandum of what 1 
thought sufficient U> occasion the commitment 
thut I made. 

t^rj, Whitaker, When was it? 

Sir R, Hopkins, it was some time about 
September. I remeAaber that he was chargeil 
before me about two notes. One was a note of 
1,260/., the other was a note of 1,650/. ; which 
of thc^e you desire me to sneak to, J know not. 

Serj. Whitaker. That of 1,260/. 

Sir R. Hopkins, There was such a note 
drawn by Thomas Kiunersley, |>ayable within 
three months afier date to Samuel Edwards, 
esq. and indorsed by Samuel Edwards. 1 
looked ui>on it ; and, turning over the indorse- 
ment, it seemed to me to be an altered and 
forti^cd thing. Upon this I examined Mr. 
Bird, whom they offered as an evidence. 
Mr. IVird lold me, that he bad lent money upon 
that note of 1,260/. and that he had received 
some money in part of payment of what he 
bad lent: 'fhat Learing that Mr. Hales was 
taken up, he made application to Mr. Kiu- 
nersley tor what money remained due to him ; 
that when he made such application to Mr. 
Kiunersley for this money, Mr. Kmnersiey, be- 
fore he saw the note, told him, that he had a note 
of his for his 1,260/. payable in three months 
after dute to Samuel Edwards, esq. or order, 
and indorsed by item uel Edwards. This 1 laid 
my finy;er upon before him, thinking it sufficient 
to conunit him, and repeated the words to Mr. 
liird, are these the words that you say ? if they 
are, re|)eatthem ; which he did. I askefl 31r. 
Kinnei-sley, whether he hfid any dealings with 
Mr. Edwards? He said, that be had not. 1 
askeii then, how be caiue to make a note for 
1,260/. payable to him, a person with whom 
he liad no dealings. He said, that he did it at 
the icquebt of Mr. Hales, to whom he was in- 
debted iu that sum of money« He said, that 
as to the indorsement he knew not how it came 
IhtTP. He seemed ready to make an ample 
conieshiun ; but there was a person thera, who 
was (1 think) one way or otiier related to tiie 
law, who stopt him directly, and had oft inter- 
rupted. I said to him^ air, tbb is not be- 
•omiDgherc: I expect to caniae any penoo 



without your interrupting. I will afterwards 
ask any question that -«— 

Seij. Whitaker, Sir, when Mr. KinDeiilcy 
bad owned the note, was there afterwards a 
denial? 

Sir R. Hopkins. Aflerwardst Sir, there was 
a denial. It might be as to tlie other note; 
and not that which you are now eilung IM 
about. 

BIr. Richard Davis, the constable, sworn. 

Serj. Whitaker. Richard Davis, I think tbei 
you were the constable sent to apprehend Mr. 
Kinnersley. Will you give us an eoooanl 
how often yon went to apprehend bim,wbelhci 
he was to be met withal, and what passed when 
he was apprehended ? 

Davis. My lord, on September 18, tbm 
was a warrant issued out to take up the ktI 
Mr. Kinnersley, and was given to ine to eie* 
cute. Accordingly 1 went in the aftemeeai 
and took a |iorter with me. We went to thi 
Magpye tavern without Aldgate. I sent the 

Sorter thence to Mr. Kinnersley *8 house is 
lansel-etreet to tell him, that there was a gen- 
tleman there to speak with him ; becaoee, hi 
living in Mansel-street in Middlesex, 1 conU 
not there execute my warrant. When lh« 
porter came back, he told me, that the dmughlei 
came to the door, and said, that the reverand 
Mr. Kinnersley was not in town. After I Iml 
paid for what I had called for, I wentfraa 
thence to the derk of the parish, and esksd 
him, whether the reyerenu Mr. Kinnersln 
was in town? He answered. No; and sain, 
that he went out of town on Tuesday, I thill 
it was, and tliat he did not know when h« 
would be in town. He asked me what I 
wanted with him ? I told him that a conpk 
wanted to be married, and wanted a licence 
Won't (said ht) the curate do? No (said I) 
the young gentlewoman will not be marriei 
by any but the doctor, and at his church : S 
the person having no apprehension, sent me t( 
London-house in Aldersgale-strcct, to enquir 
for Mr. May, who would tell me when thi 
doctor would be iu town. He told me, that b* 
would be in town next Thursday night. Ac 
cordingly I went the next Friday morning 
took a porter with me, went ilirectly to t£ 
Doctor's house. When I came there I ninj 
hard at the gate. Out came the daughter, 
asked to speak with the doctor ; she said tbi 
he was not at home, and enquired what I wouli 
have with him. I told her the same about m; 
wanting a licence that I had tuld the clerk be* 
fore. I will (said she) go and call my mammi 
Accordingly madam Kinnersley came out: . 
told lier that I wanted a licence, was in 
formed that the doctor generally kept licence 
by him, or at least could help me to one. SIm 
desired me to walk into the parlour, said the 
the doctor had been out of town, was very muci 
fiitiff ued, which was the reason that he was dc 
nied. Out came the doctor; Sir, (said he 
where is the gentlewoman ? Sir, (said 1^ she s 
hard bji at the Magpye tavern by AJdgati 




f<yr a Misdememor. 

il bt) is ibe, *Xii nho art ber frieoils 
B Ifaat ber name waa Binl. When 

B abe r I Mid ID Fleet -stifei. 
<i be) remeuiber thai name. ¥011 do 
. . BUllknowlwrrallierTery ndl. What 
■II (aU or) ia she ? I told bim her age. 
B«n bs I'riends aiten conaeut (laiil be), 
'■ ' afc W IbM l.nouldiKil Jo it For lOO/.; tbe 
yniqr ia 50/. \ I Inid liini lliat il bail been 
taila MT know ledge. Ave (said be) ilroaj 
k M Ac Vtm. J dHired bim to go to the 
k<M^ where her brother waa wilh her, Rod 
k*«M b* Mtisfied. My intent wna to decay 
b ■!» tbe libcTtiea ol'ihe city. Hetaid, Nci, 
k<M«Unotgn vrilb me; so I bad no oppor- 
tari^tben. Itut baling seen him once, and 
MinaatDS liiin, I afUrwarOa watched for him, 
mi *a* bim come nut, and go through the 
Ibmn. I watched bim till became to Ald- 
|Nt; I kben paid my respectt to liim. I lliiak 
{mA bt) that you are the peraun thai came to 
■tabaat ■ marriage. Yea, Sir, (aaid I) but 1 
'■" ■ ^ alfaii to apeak 

He 
, bad the 

piisni aonl to him, be would readily have 
«■&. I aakcii bim why he ilFniett bimseir? 
■»Mll, Ibal be apprehended an arrcBl. I de- 
M bfai U go with roe to the While Hnn 
iMsia Biahai>9gale' street. Xlelbere owned 

fc]. WkUakcr. Was it within or wilbout 
^\m%t—Dam. It waswithin. 
.%n. WKttukrr. Did you go wilh him to sir 
fete4 Huphina?— Duvit. Yea, iSir. 

|. Wkttaktr. My lord, there is another 
""tu we aball prute, tor all is drciiro- 
We ahall shew that Mr, Kinner»ley 
_ '. HalM have been often together for 
r It« raoDtlis in a priisle manner. As 
B bath come in, the other hath 

Cwilh kina into a private room, and they 
Blajnl •ooie lime together ; and this was 
itM Hi* iitiM that lime Iraiisadion* have 
nbm these matters are laid together, 
jai^MjailftcthalMr. Kinnenley bath not been 
, mMm Mr.Edwar^aaalogivehirol.ifGO^; 
lAu tberv waa a nlain limned design to 
■ IbiaHiBtwy npon biseredit. Join (bis to- 
'w with bis owning, that be knew that Mr. 
^ ■ ' ■ ml waa on ilie back o( the note 
V the note, anil that he knew of 
rot. lliongh he said be knew not 
Mlbere- CoDsiilering these things, 
( bul that there was a con- 
MbAtneutbein. We (hall call aereral 

We submit it to my lord, whe- 
— -f. Il ia foreign to this indicl- 
aboulil have notliing nlTered 
■at we may tw sii|ipoaeil to come pre- 
■ ilWand. We caDDot be aupuuseil to 
^ pNfwrH in iMcnd ihii, by shewing how 
beaaM tbete, and upon what ncconnt. 
_ I- C fi: Il ia an indictment againat both 
!%• Bal« WM indeed »&> 



scribed by the defendant Kinnersley: Bat 
then itwasdebiertnl ontby Ihentber Jerendant 
llalea. Now, they say, that they will shew 
by several witnesses tbai they were Tery oon- 
lersant logether about that time, and they are 
■cquainteil with tbe private manner of Oieir 
conreraing logether. You hear what is the 
use they make of it. I see nut that we can re- 
fuse their giving this account. What uae is Ia 
be madeol it muat beletllu the jury. 

V[t. Mather. Aretbeae things lobe proredby 



Hr. Strange. Pray, where do you live? 

hah. At Feel's colfee-houie, in Fleel-slreet. 

Mr. Slrangr. Do yoti keep that bouse? 

Bab. Yn, !^ir. 

Mr. Strange. Hare you ever obaened ihat 
Mr. Hales anil Mr. Kinnerstey erer frequented 
that house, and in what manner ? 

Bab. Last summer, tbe greatest partofthe 
sutnmer,someiimes twice or thrice in a week, till 
near the lime that ibe gentleman was taken up, 
Mr. Hales would somcliinea come thither, and 
anmetimes be there an hour or two. Some- 
times be wnuiil ask whether a minister bad 
been there to aak for himT We hardly knew 
the name of either of them, but knew whnm ha 
meant. Mr. Haleswould often bein ourroom, 
and see sonielimes Mr, Kinneraiey coming, out 
of the window. Mr. Hales would hardly take 






«ofhirr 



but a 



she c 

.te room, and 



Hales would go ii 
the other atterwards go t 
timea as soon as one came in at one door, the 
other went out at Ihc other, and be followed bim. 

Serj. Wliilaker. How often was ibis ? 

Bab. Twice or thrice in a week. 

Mr. Strangt. Do you remember on what 
occasion, and bow tbey lefl off coming to your 

Bab, Mr. Kinnersley was not at the honse 
for two or three weeks or a month before Mr. 
Hales was taken up. Mr. Hales was there a 
tew days before. 

Mr. Strange. Do you remember that Mr, 
Kinnersley passed by? 

Bab. Once he did. He weol down Fleet, 
street- Mr. Halearoscup, went out, ood went 
alW him. 

Mr. Strangt. How long tvas tbis before Mr. 
Hales was apprebendeil ? 

Bab. It was three weeks or a month, I he- 
litre, before he was ajiprcbendeJ. 

Mr. Slninge. I ask, Whether at any lint 
they aatdowii in Ibe public room ? 

Bab. Very seldom : Ihey generally went 
into the pritale part. 

Mr. Strangt. Was that distinct from lb« 
rcstofibe buiiseF 

Bab. Yes, Sir, i^uile separate. 
Mr. Juhii BrBokttt 

Mr. Slrtige- Where d* yon 




S391 



3 GEORGE 11. Trial of Wm. Hales and T. Kinnerdey, ££4 



Brooks, ' I keep a coffee- hou<e in Downing- 
(ttrerty in WesUniotter. 

Nr. Strange, What name doth yoor coffee- 
house go hyf — Brookt. My own name. 

Mr. Strange, Do vou l^now tbat you have 
ever observed that 5lr. Hales and Mr. Kin- 
oenfley ever frequented your house, and in 
what manner ? 

Brooks. Mr. Kinnersley hath sometimes 
come to the cofice- house ; sent for a porter ; 
gave him a note to Mr. Hales, who hath come, 
and they have gone to a private ^tart of the 
room. 

Mr. Strange. Was there aoy other with 
them? — Brooks. No, Sir, never. 

Mr. Strange. Was it often that they met 
thus? ^ 

Brooks. About four or five times iu a month. 

Mr. Strange. How long have thcv stayed ? 

£r(k>/». Several hours. When I have asked 
the servant whv a candle was not carried them, 
ke hath said, that they refused it. 

Mr. Strange. How long was it before Mr. 
Hales was taken up ? 

Brooks. About a month. 

Mr. Strange. Was tliere any observation 
yiade upon his being taken up ? 

Brooki. I observed it the more, having oflen 
«een them togctlier. 

Thomas Janeway sworn. 

Kiuncrsky. I admit, my lord, that we have 
been together at several coffee- bouses. 

L. C. B, Well, now the mau is sworn, we 
will go on with him, 

Mr. Strange. Do you know Mr. Kionersiey 
and Air. UB\ei?-^Jnntuuy. Yes, Sir. 

Mr. Strange. Do you keep a coffee-house? 

Janeway. Yea, Sir. 

Mr. Strange. Where? 

Janeway. In Cornhill, Sir. 

Mr, Strange. Do you remember tbat they 
have frequented your house together, and in 
what manner ? 

Janeway. I believe they may have been 
there t^^ther several times. 

Mr. Strange. What company had they with 
them ? 

Janeway. 1 take no notice what company 
is there. I observed them not 

Mr. Strange, How ot^en have you observed 
tiiem retire up stairs together ? 

Janeway. I take no notice of sucli things. 
They might for an hundred times, for aught 1 
know. 

Serj. Wkitaker. My lord, we shall rest the 
evidence here. We submit it to your lordship 
and the jury, when such a note is drawn by 
•uoh a mau upon such a paper, by which he 
promiseth to pay such a sum to a person with 
whom he had uo dealings, to what end can it 
ke. Can it be with any other intention than U» 
charge an inuocent mau witli it ? J think it is 
a plain case. It k certain that Mr. Hales car- 
ried this note, and borrowed a sum of money 
upon it.; and Mr. Kinnersley made preparation 
tor it by making a note for so much monty 



psjfable to Mr. Edwards. Doth a nan q 
easily ifive 1,960/. to a stranger with whom U 
bath had no dealings ? To what pnrpote eonk 
it then be thus drawn? Wb^, to he indorsed 
And this Mr. Kinnersley did, and he ownei 
that the name was there, and be knew that Mi 
Edwards was a rich man. Well, if Mr. £4 
wards was a rich man, and^the other not won] 
a groat, as he owncl himself to be an nndon 
man, to what purpose then can it be? WeU, 1 
think it clearly appears tbat this wan a eon< 
trivance between them two. If you think mi 
this plain, I think that it is imnoiisiUe to torn 
vict any man on a stronger evidence. 

Ser). Darnell. Mv lord, I amcounfel ierthi 
prisoner at the bar, Mr. Hales. Aiu| I thiak j 
doth appear that there was a transaction ha 
twecn Mr. Hales and Mr. Kionersley ; av 
that this money was due from Mr. KiaMibei 
to him. And we aitprehend, nntwithftandini 
what hath been oflered, that the confsMinp s 
Mr. Kionersley is a proper justification of lb 
Hales. It is not, my lord, Mr. Kinnerslev' 
being a defendant that shall deprive Jlr. Uu| 
of the benefit of this oonfesston. It ap|^earai| 
that he was indebted to Mr. Hales, this nsl 
was given in satisfaction : we apprehend Ibi 
it was given upon this acconnt to R|r. Utlfl 
In confirmation of what Mr. Halea nilh, m 
can produce a person to shew tbat therf nt 
an account between them, and Mr. KinnMhl 
acknowledged such a balance, in salis&clii 
of which this note was giveo. And we thpi 
that it could not be drawn as a note of U§ 
Kinnersley 's payable to Mr. Hales, not «■!] 
because the account would be as good agM 
Mr. Kinner&Iej^ as such a note of bis hand, k 
also because of 5fr. Hales*sown circumstance 
Mr. Hales applied to a gentleman that reooqi 
mended him to Mr. Bird to borrow money qpo 
this note. And, gentlemen, it was thia nel 
thus drawn that recommended him. M; 
Hales had the misfortune to be oonceraed wit 
sir Stephen Evance; he coukl not therefai 
appear himself; and, therefore, by the assial 
ance of this note, borrowed tlie money. Whi 
difficulties came upon it, he went and paid pai 
of the money, and I believe would have talu 
care to have paid the whole : it doth notappei 
that this hath affected Mr. Edwards. H 
name indeed hath been exposed as a roan won! 
not l)e williuff thatit should ; monev bath bei 
raised upon the credit of his name ; out he hnl 
not becu affected thereby. This therefore lid 
on the unhappy circumstances of Mr. Hak 
We will call one witness, and ihen this coufti 
sinn of Mr. Kinnersley we ho|>e will avail. 

Mr. Lacy. My lurd, I apprehend that there 
a circumstance ihat lessens the weight of, if 
not wholly sets aside whst they go upon. Whi 
they have gone on was, that Mr. Edwards 
franks were used lo this ill purpose. Aladdae 
a servant of Mr. Edwards, is produced, wl 
tells us of a parcel of franks that were delif en 
iu July iMt. Mr. Bird gave an account tk 
this note was liroughk to him in March : i 
that ii was brought him before thoae fnnl 




I Mhdemranor. 

Aiul thnugh il may be ap< 
there were oiher rmiikti, we 
Oittk tint (bera ouyhl lo be a ptout' of some 

ji.U il.ii iffrti dt'lKcred before. 

TIterc hnfe been, Mr. Lacy, 
■j'l^weti) for^teral years. Thoie 
< 4:Iil ill July laM, arolliose ihkl 
iiniikn), but were only covei-s iell 

Mf- R^btrt Burkil ivimn. 



<://. No ! What dolh (lie mao 

' What, none in Newgate, nor 
Uo you know of oooc ? 
■ .,Sir. 
' -■,■. Do j'ou know of any money 
ftji 'u nl auy time itue froiD Mr. Bale* to 
Nr. fciMMnic)' r 
Btrkit. No, Sir, none at all. 
LC. B. Ila>e voii anyolber trilnesi? 
Sqj. Darnell. My lorJe, there are Iwo wit- 
• ■ --.slaleJ, 



^ Ejrt. My lord, aud ^ntlemen of tlie 
, A I am connacllbr Iklr. Kinnersley. I sp- 
|MmJ iliM lie is ionncent. t readily agree 



liy ad of parlwtli 
MMHt, uid (heir ceourity necessary lo com- 
M«t; toil that Uie forgery of audi notes 
III ■liinrmeiiu tliereupon i« very peroicioua 
ktt* f¥Uic : I ihertfure apprebend that (here 

«Vt W alrong e*iileiu;e for tlie contlcling 
ih a crime. 1 bu[nb|y Bubiiiil it, that be- 
In * Bss be convicted or ao iutamous au af-' 
fel Ifcer* oo^t to be atran^ eiidence ; and 
it iMber )M^r«iuie be it a clergyman of the 
flHcli of Eaj^aiiil, and his cnpacrty nl' «er- 
(indepriLda M)ion liia credit: And il doth ap- 
fwlkat be baihbeliarcd himself wiib all pos- 
db eaalMD. You see that ibe coutrivance 
tm IW iiilirvr aem la apprehend bira made 
111, iiu a preience of a marriage. You 
Mn, and I did glad lu tee il, and 
■0 otlieis Used tbe i>ame caution, 
hiaanijuiry wliul t^fe the young wo- 
lof, MiilentaadinE Ihni Hhe waa not of 
bcr parenti not being tlii^re, nolwiili- 
dial be irit told lliiit lier liiuihcr 
riUi bor, jet he ab9i>luti.-ly refused, 
111 nut be coocerncil fur an 
foaajm niibuui the parent'a conBenI: 
Mich a p"ii>t ill hiw favour, lliat 1 Ibiiik 
•lion^rr cirr^iinaiance fiir him, than 
circuniiUiiceB arc ugaintrt blm. A* 
affencK iliai ii charged upon bin. ilia, I 
:, (bat he »li«uid gifa mit a note made 
IMjalili- (0 Mr. Kdwards, and in 
DtiU! in Mr. Edwards'a name, ii 
ij^ Mr. Edwardi with the pay 
iiinpy. Tlii'v lav a great itreai 
1 ••y, that Sir. fciuiiersley wui 
Liiiti«l iriib Hr. liiwuit. Ow 




A.D. 1729. 

of die wimenes aaiili, that Mr. KinnetUt^ 
hitntelf oivned that he had neicr seen Mr. 
Edwarda before in hi* life. How therelbr^ (say 
tbey) is it likely, that there should be any 
tiur reasDa for a man tn make such a note pay - 
alile lo one that he had no deahng nor acquaint* 
ance with, nm- had so much as ever seen before 
in his lite T I eubinit it to you, whether in ibe 
course of business it is a material thing whom a 
note is made pajablelo. If a man owe a sum 
of money, and give a note for it, il is natural to 
enquire to whuiu it should be made payable, 
It was the more naiural iu this case, ai Mr. 
Uales, having the miaforlune to have a com- 
missiun of bankniplcy standing out against 
him, could not negociste note* in his own name, 
but must act in some friend or neighbour'! 
name. And il is no great wonder that Mr. 
Kinnersley, whose characterdirccted bis studies 
another way, and who waa not Bcqiiainled 
much with these aftkirs, should he imposed 
ti[H)n to give such a note; and the less so, fnr 
this plain rEOSOD : Sir Stephen Evance and ih. 
Hales formerly Ufcd iu Mr. Kinnersley'a 
parish ; received him with a great (leal of oiti- 
\\ty : It can be no wonder therefore that h* 
alierwards continued an acquaintance with him. 
Notwithstanding his roisforlunea, it ia plain that 
Mr. Hales was Hiillacquaioleil with several very 
worthy gentlemen : Mr. Gibson and Mr. Ed- 
wards butb furnished him with franks; sir 
Uiby Lake recommended hira to Mr. Bird, in 
barrow of him s considerable sum of money. 
If such gentlemen as Ihese thus corresponiled 
with him after his mitlbrlunes, no wuntler thai 
Mr. Kiuuersley, whs had been the minister of 
the parish where Mr. Hales had lived, should 
beep lip ao acquaintance with him ; and so no 
wonder that he ahoulJ be so imposed on. In 
fhci, Ke shall shew you that he was indebleil 
for such aaum to Mr. Hales. It is impossible 
(Ogive a particular account of the whole affair ; 
Mr. Hales being also a defendant, and there- 
fore no evidence : But that he was indebted iii 
some such sums is plain. Gentlemen, it is 
very ioaocent if a man give a note where ibero 
is no consideration. ' A is no injury to tbo 
public. The person that gives the note may 
mjure himself, but not the public. There ia ai> 
act of parliacnent against tlie giving of auch 
notes. Well, if the giving of tbe note be nut 
culpable, consider bow the fact uf the indorse- 
ment comes about. And if you consider how 
that comes about, do doubt but that he must ha 
i:leared uf the fact. How must this be done to 
affect Mr. Kinnersley 7 It mu-st be on the back 
of the pole when ho wrote tbe note, and h« 
muM know it to be there. Now, with great 
submissiou, have they given any proof, or co- 
tour of proof, that it was then there, or, thai 
if it was, be knew it lu be tlienf Hiey haw 
given you (he prouf uf Mr. Ciid and the con- 
stable, who was present when lie was examin- 
ed. According to the Brst of these, it is pUin 
that he knew not. He said that he knew (bat 
the name was there, but know not how it cania 
Tbbc, I thiuk, instaad ol a coafotiaa. 



fiS] 



3 GEORGE II. Trial of Wm, Hdn and T. Kinnenley^ 



is an BTeiAo^ of it, by nyini^y HMt be knew 
nothinfir ai «|| how it came there : But consi- 
der tlie nature of ^e thinip, how it is eupposed 
to Ik done from a frsnii of Mr. Edwanls's. 
Mr. Edwards liad never franked a letter for 
bim, but many tor 3lr. Hales. Is it not most 
natural lo suppose then that Hales was con- 
cernod ? Hnw doih it follow, that this being 
done from a frank, the nam<! must lie tbera be- 
fore Aie note was wrote P A man that is capa- 
ble of drawing such a note for ooeh an end, 
might be not gire it to be Ihmked ? Is it not 
easy to conceive, that if I give onch a note on 
a quarter of a sheet of pa|>er doubled up to a 
person to be franked, that he shall do this so 
as to make the name stand for an indorsement ? 
1 woaM mslce this further observation, it hath 
been eounted doubtful, whether the making 
nse of a man's name to a diflferent purpose 
from what he dcsigiied itfor, shall be counted 
a forgery. I think that the doubt arisetfa npon 
a distinction of my lord Cowper, on the statote 
of 8 lilix. between forgmg aud making a false 
deed, i do not |ire(end to say but that the 
opinion of the King's -bench was right. It 
was in the aflair of Ward and Bridge. 

X. C B, No, Bridge and Dutton : there 
was an alteration. The question was, whether 
H could be accounted a forgin-y within the act 
of fiarliament ? The wunls of the description 
in the act of parliament are, ^* if any one forge 
or erase, IkcV whether he could be charg^ 
with forging of that note ? I was one of the 
counsel. It appeared their opinion, that he 
forged it as much as if he bud wrote the 
whole note. 

Seij. Eyre» M}* lord, \ a<]free it to be as 
your hardship puts it. I nnly mention it bs a 
iktubt not settled hy the priti(e<l bookii. My 
lord, a man may alter a deed, e. g. a person 
o Weill me money on bond ; if 1 alter tlie boud 
to mine own damsge, that is no forgery ; but 
when he doth it to the injury of the person to 
wliom ttio money Is owing, then it is forgery : 
the furgery therciore lieth in the design of 
defrauding another. Now, whose good is it 
that this note was drnwu for ? It appears that 
my client had no benefit st all by it. The 
money was all received by Mr. Hale^, and the 
whole transaction about paying the money was 
by Mr. Hales : he was therefore to receive the 
%ene(it, most likely therefore tlitit the forgery 
was his. And as to this promissory note, what 
SVBS the effect of it ? No one will pretend to 
say, but that if Mr. Edwanls was to bring an 
action lie might n cover his money of Mr. 
Kiunersley: he hath, therefore, osily wrote 
A note, which, with nut controversy, hath sub- 
jected him to the payment of such a sum. of 
money. Mr. Hsles hath receivcil the money, 
and gained by this ntite. IVe submit it there- 
fore to your lordship. 

Hr.* Mather, My lord, with rHstinn to the 
transactions between Mr. Kinnemley and Mr. 
Hales, we shall call evldi.'nce to sfiew the 
reasons of those private meetings that were 
bstwccB them. 



Mr. Ftter Marsh sworn. 

Mr. Mather. 8ir, do you know the • 
ants, Mr. Hales and Mr. Kinnerslev ? 

Mardh. I have. Sir, known Mr. Hale 
years. 

Mr. Mather. But have you known M 
nerKley? — M^trth, Not so many years. 

L. C. B. What is your business or e 
ment ? 

Marsh, I am an attorney, my lord. 

Mr. Mather, Do you know of any t 
tions between Mr. Hales and Mr Kiun 

Marsh, About ten or eleven yeai 
Mr. Hales brought me a bond of 50/. 
by Mr. Rinnersley to me. Mr. Kir 
owed him the money, and had given 
bond imynble to me. He desired me t 

Seri. Whiiaker, This is not evidence 
signihetb it what the defendant told hin 

Mr. Mather, What was done upo 
Wlmt came of the bond ? 

Marsh. I delivered it to Mr. Hale 

Mr. Mather, Did Mr. Hales owe 



>we y 
at all. 



money ? — Marsh, No, Sir, none 
Mr. Cropley sworn. 

Mr. Lacy, Mr. Cmplcy, What 
know of any money -matters betwe 
Hales and Mr. Kinnerifley ^ 

Craplcv, I received ahout 607. at Jai 
eolfoe- house, a ilebt which was clue 
from Mr. Kinnersley : they were tl 
gether ; Mr. Kinnersley was the debt 
Hales had given me a note for it. 1V1 
nersley had prevailed on me to lend 
hundred and odd ponnds upon but a sli 
quaintance : he hronght another gentl< 
be security with him for the paving it 
1 forbore liiin for six months. ( then c 
of him after it : w ben he had led nie 
from coffee- house to coffee-house W 
months, I was forced nt last to sue for 
desired me to sue the other pnrty, and 
him: I recovered half from the one, 
came upon him for the other. When 
to siTvc him wiili a notice of a writ 
quiry, he met me with Mr. ILiles i 
tavern in Holborn, about June or July 
atnelvemonth. Then Mr. Hales suit 
I am to receive ahout 6 or 700/. with 
three months time; and then I shall ^ 
to pay that money: upon that I st 
procedure upon the Writ of Enquiry; 
Mr. Hales requcsTcd me, I took Air. 
and Mr. Kinnersley'* note for the pav 
it within three mouths: when tli;it I'i 
expired, or within about fonr months, 
What was his pnrt to pay I received : 
way's coffee-house: they were to 
which paid me I cannot say. The moi 
in half and quarter broad |>icces : I rel 
take it in tin-se pieces, being to trans; 
the Allrv'. Upm tliat he touk me to a I 
abom Yemple-bar, and there changed 
L C. B, When was this ? 
Cropley, It was in February. M 



St9j 



Jbt a lii9iemeatiar. 



A. D. 1739* 



[240 



MKltsr sifB me m Utile netoat the sMue tkne 
im the WMges that I had austained iu teek- 
iw it; ahout 5XH, or tbereabout«. 

Ilr. Sinngf, liath there been any appUca- 
liw Bade, Sir, to you to appear aa a witoese ? 

Cr^y. Yea, Sir, BIra. Kinnersley tent te 
4mm BM ; mmA Mr. Kienertley also aeot oie 
atolls, asd bcaidee that seat iue.a Subpceaa. 

Mn llrtn^cL Caa you produce that lette ? 
GNpigr. 1 have it not here, 8ir. 
ik.Si^mmgt. Yott caoDui aay which paid 



iaiiav,8ir? 
fwy/ry. No, Sir, but they were both to- 



l^ffgfty. Sir, one word I beg. Did not 
fcBalai giro you a note for it? 

UqdiSf. Yei, Sir, you and Mr. Bake 
jwdinil. 

Mi: FHer Beait waa called, but did not 



Mr. Jokm WeU$ aworn. 

Mr. lary. What do you know. Sir, of any 
•■ly dnefrom Mr. Kinnerrfey to Mr. Hales? 

Wdb, No, Sir, I know net of any. 

Mr. Lacy. Or of any money lent, particu* 
hrij aa bondved pound ? Was Mr. Kinnersley 
Mtosi lo yon ? 

Mb, Yes, Sir, an hundred poond ■ 

*ft. Itfcy. Who lent hin the money to 

wmk, Mr. Hales, as Mr. Kionersley told me. 
Mr. £snr. Who paid you the money ? 
Mb. Mr. Kinnersley. 
Mr. Ian. Was Mr. Haica present ? 
lUk I do net knoW| Sur. It waa 



Mr. John Sunpsoa, hanker, sworn. 

Mr. Lacjf, Sir what do you know of money 
Mr. Kinnersley to Mr. Hales ? 



Smf§9n. 1 know ootMr. Hales, Sir. 1 never 
vabrnk out of Court. 
Mr. Lacy. Was Mr. Kinnersley indebted 

oaipsM. Some months ago he borrowed of 
MM, on some lottery tickets. 

Mr. Jjify, Who paid it you off? 

fiw/Moa. I was not at the shop when the 
■■cy waa paid. 

Mr. Lacff, But do you not know how it was 
tmktTjgfd, whether by money or notes, and 
Ayvhsm? 

Sim pm n, No, Sir, I cannot say. It doth 
■t apfpsr by oor books. 

Mr. Xflcy. Tk^ you know or not that Mr. 
Irim paid it, or gave a note for it? 

iimpMtn. I do net know, Sir. 

lb. Lacy. Dolb any note by your books 
given for it, or by whom paid ? 

No, Sir ; if it had bef*n paid by any 
than Mr. Kinnersley 's, 1 believe 
te Jl fsooU bare appeared by our books. 

Mr. Fowter, banker, sworn. 

lisaai/sy. Stf, I lieg you to say who- 
i» you HBMmber that 1 gave you a note 
ifiMnAflCMr.Halw'i? 




FomUr, You never mentioned his name. I 
lent you money upon lottery tickets; but 
know nothing of that you mention. 

KiiMcriley, Did not Mr. Hales come to 
yottf shop, take up the note, and pay it ? 

Ftaoler. No, Sir, not that I know Oi. I never 
saw him tiiere. 

Mr. John Hall sworn. 

Mr. Lacy, Did you ever, Sir, give a note 
upcjQ Mr. Halea's acoount and for bis money ? 

JialL Not that 1 know of. 

Mr. Lacy. Did you at his desire pay aay 
money ? — HalL No, Su*. 

Mr. Xocy. Do you know any peraon that 
did?— lir«/lNo,Sir. 

^j. Wkitaker. Do you knew Mr. WiUiam 
Hales ? Will you give us an account of his 

Keying you a bill iu broad pieces, and whether 
e asked you to write hie name Wells. He 
can tell very well I know what this meaner 
Did you give any note, or set your naaM? 

liaU, I set my name. 

Serj. Wkitaker. Do you knew your name 
again :' — Hall. Yes, Sir. 

Sepj. U^A4VaW. Is that your name? 

HaU. Yes, Sir, it h, 

Serj. WhUaktr. When did they get it of 
you ? — Hall. On August 17 last. 

Serj. Darnell, 1 see not hew my brother 
makes this efridence against Mr. HueSk He 
is not brought for him but fur Mr. Kmnersloy ; 
and they would cross-examine him as to Mr, 
Hales. 

Serj. WhUaker. I agree with yon that we 
could not have called him : but my brother 
Eyre called him to shew that there was a pro- 
missory note, he denies it. Well, 1 submit it. 

Serj, Eyre. My lord, we have gone through 
the evidence opened : but I would mention this 
as to the examination before sir Uiohard Ho|)« 
kins. It is suggested that Mr. Kinnertdey 
would have confessed, but that he was in- 
terrupted by Mr. Alitford. It is plain that he 
bad spoke to all that was material both as to 
the note ami the indorsement : J think that it 
is therefore wrong for them to say that he 
would have confessed more, but that he was 
interrupted. But we will call a gentleman to 
shew in what a candid miuiner he behaved, 
and that he was not interrupted in the i^anner 
that hatli been suggested. 

Rev. Mr. John Hayes sworn. 

Neij. Eyre. Were you present, Sir, at sir 
Ridiard Hopkius's, when Mr. Kiunentley was 
exaniineil ? — Hayes. Yes, Sir. 

Serj. Eyre. What did you observe about his 
being stopped, or did he fully speak hb mind? 

Hayes. I remember. Sir, that Mr. Mitford 
desired him to be cautious, and not too free 
iu making bis reply. 

Serj. Eyre, J only ask you, whether lie 
had nut then spoke both as to the note and the 
indorsement ? 

Hayes, He said that the note was bis. He 
said that aa to the indonement, he had heard 



347] 



S GEORGE IL Trial of Wnu Hales and T. Kimerdey^ 



that it wu indorsed by Mr. Edwards, but 
([new not how it oaroe. 

Serj. Eyre. Do you aprirehend that his beinnf 
eautioned was to be careful in his answer, or 
that referred to the answers that he had al- 
ready madeP 

Hayet. I apprehended that the caution was 
to be careful in his answers. 

Mr. Grants sworn. 

Seij. Eyre. Were yon present at the «xa« 
nination of Mr. Kionersley before sir Richard 
Hopkins? 

Grants, Yes, Sir, Mr. Kinnersley sent for 
nie when he was first taken up. I suppose it 
was because 1 married a relation of his ; lor 1 
knew nothings of any transactions between him 
and Mr. Hales. 

Seij. Eyre. I ask you, whether he fully 
apoke his mind about the note and the indorse- 
ment, or whether he was interrupted therein ? 

Grants, Sir Richard asked him, whether he 
knew the note and the indorsement? There 
then passed a sort of a squabble between him 
and Mr. Mitford. 

Serj. Eyre. Did you observe that any gen- 
tleman interrupted Mr. Kinnersley, or cau- 
tioned him as to his answers ? 

Grants. There was an interruption: but 
what it waa I could not particularly hear. 

X. C. B, Hare you done? 

Serj. Eyre. Yes, my lord. 

8er|. Whitaker. My lord, lobserre^that the 
defence that they have made is for one to 
throw it upon another. Mr. Kinnersley thinks 
that Mr. Hales is as deep as he can be, and 
therefore may bear the load: But then my 
lord, Mr. Hales wants to retort it upon Mr. 
KiDDers!ey ; but the drill of both is, that Mr. 
Kinoerslev maj^ get out as he can. You will 
observe the defence : There is a pretence of 
mutual dealings, and that this note was given 
in discharge of the balance of the account. I 
submit whether there hath been any evidence 
of any dealings to an^ such sum : If not, to 
what purpose was it given ? If it was to raise 
money, was it for a fraudulent purpose, or 
not? If it was, they are both equally guilty. 
But the pretence now is this, Mr. Hales was a 
bankrupt: and it was therefore proper for 
them to have a third person, in whose name to 
transact. Now how could that be proper, if 
it was a person over whom they had no power? 
Would any one be willing to take notes in the 
name of a stranger? Is a stranger to be 
trusted with such a sum? No. If not, how 
then? Here is one man to write such a note 
for another in Mr. Edwards's name, to what 
purpose? Why, in order to charge Mr. £d- 
wanis with the money : Else, what si^nifieth 
the indorsement? The question then is, was 
Mr. Edwards's hand then*.? And did Mr. Kin- 
nersley know it ? They that woukl have it that 
Mr. Kinnersley waa very innocent, say, that 
he knew nothing at all that Mr. Edwarda'a 
liand waa there. Well, when he cornea to be 
Silied upon iod iinportiiiied Ibr the BMoey by 



Mr. Bird, what doth he say ? Wbr, M 
wards is a rich man : I am an undone 
You must therefore resort unto him. 
was said not only upon the sight of the 
but before it was shewed to him. U' 
told Mr. Bird that he knew that he hai 
a' note of his so indorsed. Gentlemen, 
of this nature are only to be detected h 
cumstanoes. They will not call person 
witnesses to these transactions. If thia 
fair dealing, it waa proper to have called 
one hooest man to give an account that 1 
present thereat, and privy to this transi 
But instead of tliat* which is the wickc 
cannot tell ; but it is plain that here is 
trivance to charge an innocent person 
auoh little things as evidences of transi 
of a note of fifty or thirty pounds, or th 
are not to go against it. Circumstanci 
not make a plainer proof than here is < 
gery. A note drawn on such a little ps 
so slovenly a manner, detects itself. He 
plain forgery. The question is, who is 
of it ; and whether there is not sufficieol 
that the defendants are the persons guilty 
Mn Strange. My lord. I beg it may b 
sidered, whether it is not criminal to giv* 
a, note. At aeveral times he declared bel 
saw the note, that the name of Mr. £i 
was on the back of it. If the jury are • 
mind, as to one fact, it is a demonstratio 
the name was upon it when the note waa 
If the iury will look upon the note, it «i 
pear tnat something was written upon th 
and nothing more probable than < free.' 
any imagine, that Mr. Edwards, whose 
is there, would ever write a frank upon s 
If therefore the jury is of my opinion 
observation, that there was at first ' Fr 
muel Edwards,' it is impossible to imagi 
that it was wrote there before the no 
drawn. My lord, that the jury will tt 
their view. My lord, there have been ( 
things said as to whose benefit this sh( 
for, that it is plain that Mr. Kinnersl 
ceived no benefit by it, that therefore it 
not probably be his forgery. My lor 
plain by the account that we have given 
their correspondence, that there waa 
thing carrying on between them, whict 
be of a very private nature. Doth it e 
pear for whose benefit it was ? I am fsi 
an undone man ; you cannot expect it 
but must apply to Mr. Edwards who in 
it: And therefore, though he made I 
liable, that aignified not, as he was at tb 
time liable to many more actions. Its 
that they were obliged to give the note 
name of another person who was respc 
having no credit of their own. As to tl 
jection, for whose benefit, we appreheoc 
no consequence ; they might probably s 
between them. There was another thi 
deavoured to be proved, viz. such a de 
from Mr. Sjnnersley to Mr. Hales, 
they thought it naceasary to attempt s 
of tbatkiAdyif they bavefaiied in that p 




J6r a Mitiiemeanor. 

t npinion wbb that Uiey 
1 [»nol' of Uiat kini), wliicii 
Wh«l h»»e Ihej ^aiueJ ? 
tegiveuof l,S60l (sver^ 
rrom * clergymin in his 
n), lliey hare prelcDaed lo nrcie 
one bond of 50/. which halb not 
I. but unl; Mr. Hales came to Mr. 
i tnlil him ihi*, which 1 Rpnrebend 
iBkntrriileccF ; Hart ihey brought lliebooJ, 
il^iW liarF aj>|«urerl whrthw true ornnl: 
TWiiiMi )irool (kit Mr. Kinnenlfy waa in- 
tttd to Mr. lUlw. What Mr. Ciopley 
■■k •■Hi'>i>*lh lo Qoninrc than about 69 or 
*■ I BiuM lubmit il, whether they hare given 
I w — ■ — t U a uccouiil of lliii affair. My lord, 
IM ta iMppincm Ihat there arv such g-encral 
■niMnnrr* *« leiiiJ lo itelecllhein. 



•kaU ailiii* with yuurconnsel vrhelheritbe 
|n|Bi' : I wouM only arquaiai voii that it is 
MNfwUr. If yuu would he heard, or call 
m; vitaeo, if^ou hare any thing material fur 
ym Mnce. it shall be heard: But if you 
F'fac* BUT lliing af\e, ibe ciiuasrl tiir the 
■■( (boat taie liberty to answer ; or if you 
t^; tDy wiloeu, they must have liberty to 
OTM-mminc, ar to bring any other CTitlvnce 
mtnvie. 
tkmmin 
*«■*. I 

tt)|tMlnciBn I belicTe will aci]uieace. Mr. 
Msim niA 50'. i he took it in that ^cntliv 
■wS naoic that was colled for b witness : 
In, Hr. Took hail oae hundred and liny 
jMdaMe : Another Krn'leman (Mr. Rurtnii) 
m Mte of 1W(. wliirh Mr. Hales gare him 

inliiDBted that 



LC.B. Mr. KiDnmley.yo 
jm^mM brinp nothing new. 



Stntrtlfy. My loni, at ■ public coffee- 
kMt he 4Mir«) me to lay down 'isl. anil the 
■Am ire DOW id court which were acluatly 
■MRd for M tnuch money. And as to this 
t, I all God lo witneiB, thai this note 1 
BB|i<Ni no other uccuuni hut on settling 
'» exchange for other oolea which 
thai nun. He directed me how 
Ic the paper out of hi* book, and 
Mt, whence I now apprehend that 
■li^ name was then on the hack. I 
Btny in his altering any lelleni: I 
U not* for want of niouey, fur a 
i> Mill du«, and call n[iou him to 
_ liatnw. 

JItt. Gen. My lord, whatefer Hr. Kin- 
Iv^ baib avrrrnl ia without wilneiR. 

Z. C. B. When persons are proacciitMl ca- 
AAy, (hr bw a1lnwr-th hint not cnuosel us in 
In: iWrHWe, wliai a person Bll^ts hiinwir 
Mitfe tafcati iiotirr "t- Upon a charge of 
Badiiuiaunr y>-ii nisk-ynar dvfnKirhy coun- 
WL Md tber Uau- ih" raw. |i doth nut avail 
"*yif wint a prrt<io lailh hitnself. and cluil 
7 wy ariil* otn, eicr|>i «upp«rlMl by priKif. 

c viHJat* u wdgtit u pfOTed, 





A. D. 172d. [950 

Kianerileif. Hylord, arc policies no pmnfT 
Here ia n cenilicale from ihe proper nfticer. 
Sir, I insist upno it that yon do me justice in 
ihis matter. I will be coulent tu sufl'crilcaili 
if this be not »a, 

L. C. B. You are not lo be ooir regarded. 

1, C. B. Gentlemen of the Jury, this i( 
an indictment againut Thomas Kinnerslry, 
clerk, and William Uales, late uf London, gold- 
smith, Ibr forging and |iub1iihing an Indorse- 
metit on aproinissury iioie, for the paymcnl of 
t,250l. to Samuel lidwanls, esq. An'd the in- 
diclnient sets tbrth. That the defenilanls. har. 
in their custody a promissory tiote subMrribed 
l>y Thomas Kinneraley, and bearing date. 4u> 
etist tC. 17S7, whereby Kiunersley promised 
to pny 1,900/. to Samuel Edwards, e»q. « hliin 
three moulhi ; that the defenilantt, having ibis 
noie in their coslodv wilh an inleiitinn to de-' 
crive and defrauil llie same Samuel Edwanls, 
etq, and being persons of evil fame and renu< 
latioii, did falsely Knd fr«iidulenlly liirge and 
eonnlerleil on this note for 1,36(»/. payahltt 
i«iihiu three months after dale lo Samuel Ed- 
wards, esq. or bis order, an iodoraeiuent (o 
this eAect ; 



llierpbv intending to charge Mr. Edwards ■■ 
the in jorser of Ihal note wiih the payment of 
the 1,2601. coDtDined in tbf lioily of the aaid 
□ole ; thai nfier Ihry had Ihrgnl and counter- 
lieiled ihis iiidorsemeot ufion Ibis note, and 
knowing il to be a couoterleil, ibey did publish 
tbe «sid note so iudursed. Genllenten, the 
counsel on Ibe bebalf of the prosecntion have 
Eic(|iiainled you Ihal ihey look npaa Ibis a* k 
contrivance uf both ilelendaots lo eairy on this 
forgery upon what they suppose at first raerelj 
afrank; Ihat the name of Mr. Edwards iipiin 
the cover of a leiirr wiih the word ■ ffree ;' that 
the word ' firee' halb been at tbe time of tba 
indorsement altered and made * for the,' and 
the words • value received' added to Ihat, and 
made the indorsemenl to thi» note. For the 
corrnbaraljng of ihia ilicv have called several 
witnesses. Fi.st, Tbomas Mndilox'was called, 
a servam to Mr. Edwards. He tells you that 
Mr. Edward* lives in Duke-street, Weit- 
minsler, and that the defendant Hales lived 
near over- against him; that Ibe defendant 
Hales frequently sent covers over, upon which 
be bail several trankx dirrrlrd lo several per- 
son! ; Ihutlhlsbalb hren Ibe custom (iit se- 
veral years ; that Mr. Edward* used to send 
iheiii over indnrscil with his name ' Samuel Ed- 
wards, ffree.' He tnith, that bis usual waj 
svni tu iodurse the whole BuperBCrijiliun ; but 
that iasi snmni'T, some lime about July, there 
were six covers sent over by tbe dcfeoitaiit Ih 
Mr, Edwards's house by the defendant Uales, 
desiring ibat ibry might be franked with only 
'Samuel Edwards uree,' without writing tba 
whole supTBcripiioii ; that Mr. Edwards de- 
dined Ihal, saying Ibftl he Qcvn &\&\\-. >t« 
liief etlira rel'tued liim, inl t^<MC ca^&n ««<:« 



151} 



ft GE0&6& n. Trial 0/ JF^ HoZif Mnd T. Kinntrdey, [«MI 



not iodorsed, but wcte prodaced here. He 
hath been asked, Whether he knew of any 
correspoDdcnce besides this of franking letters 
betivecD Mr. Edwards and Mr. Hales; and 
nhethrr he knciv ofany between Mr. Edwards 
and Mr. Kinncrsley? He answered, that he 
doth not know of any whatsoever. Another 
servant, one Anne Clarko, comes and produoeth 
a paper of names that was brought over from 
the defendant Hales to Mr. Samuel Edwards's 
house, in order lor hiui to frank letters to those 
persons, and write the whole superscription as 
at other times. She produced the paper io 
court, which she said that she received from 
3Ir. Hales's servant. And Mr. Booth being 
examined thereto declares it to be the prop^ 
hand of tlie defendant Hales, with whose writ* 
ing he hath been well acquainted, especially 
since his bankruptcy, he being a clerk in that 
commission. In this paper is wrote, 

Two to John Pratt, esq. Bristol. 

Two to Mr. Levett, Huntington. 

Two to Stephen Mitford, esq. Exeter. 
They make use of this evidence to shew that 
there was a sort of an attempt to get covers 
with these names franked, hoping or supposing 
that there mi$;ht be a space left sufficient to 
write a note of this nature. Mr. Booth, who 
was called to prove the hand -writing of Mr. 
Hales, was cross-examined by the counsel for 
the defendant, whether he knew of any traffic 
of Air. Hales since his bankruptcy. lie saith, 
that he doth not know of any, but that he was 
well acquainted with his baud-writing, being 
employed in the affair of the commission of 
bankruptcy. BIr. Thomas Bird was next called 
and examined as to the circumstances of the 
publication of this note. He tells you that this 
note, dated August 16, 1727, for the forged in- 
dorsement whereof both the defendants are pro- 
secuted, was brought to him, in order to take 
up money upon this note, and further security, 
which Mr. Hales gave in March last ; that it 
was brought in the manner that it now is, and 
no alteration made either in the body of the 
note or in the indorsement, but it stands and 
remains in the same manner as when he first 
received it ; that when Mr. Hales came to liim, 
he pruposeil to borrow of him 750/. upon the 
credit of this note for his security, and likewise 
upon his own note for the payment of this mo- 
ney ; that he had been requested by a friend of 
his in the morning before to accommodate Mr. 
Hales with this money upon the credit of a 
note which the person hud in his hand, and 
which was the same note ; and that on tlie 
aAernoon of the same clay [March 20^, while 
he was at the Hudson's- Bay house, in Fen- 
church -street, Mr. Hales came to him with the , 
note, anil he then lent him the money for 14 
days ; thit he then desired Mr. Hales to write 
ioiiie paper to testify the receipt of the money, 
and be a further security to him ; and that the 
laid Mr. Hales thereupon wrote a promissory 
note dated the same day, wherein he promised 
the re pa^ ment of this 7501. in 14 days, which 
■olo was idwcrilwd bjr the dffendant BaJca 



himself; that the sum of moaey waa mada ap 
in several bank notes ; that he delivered thoa 
to the said defendant Hales, and took this Mia 
and Mr. Hales's own note, as a security forjht 
said money ; that April 3 following. 
Hales brought 400/. which he indorsed 
his own note ; and thai the rest of the no 
remains due. He tells you, that when he 
heard that the defendant Hales waa •Pffl^ 
bended in September last, he sent to ona Took* 
kins, an attorney, delivered this note to hiai la 
go to Mr. Kionersley, to get this money iv 
him. The account that he received waa, thai 
Mr. Kinnersley was out of town, so thai ha 
could not meet with him. At length Mr. Tm* 
kins intimated that Mr. Kinnersley carad i^|| 
to see him, but would come the next dxf^ 
Mr. Bird himself upon this affair. Acoordiartl 
on or about the 16th of September, tha K 
fendant, Kinnersley, came to Mr. Bird at his 
compting-house : Mr. Bird, not kuowingwli 
he was, seeing a clergyman come in his govai 
and looking a little at him, he said hia aiBi 
was Kinnersley. He hereupon said that bf 
had a note of his hand left with him for a •» 
curity ; to which he replied, 1 know, Sur, thil 
you nave, and it is for 1,S60/. payablo la thni 
months to 5Ir. Edwards or his order ; that ht 
said that the note was of his own hand- wriliap 
but immediately added, How it came to baaif 
dorsed by Mr. Edwards 1 know not. Thi^ 
gentlemen, you must take particular notioaef 
because this was tbe first mention of Mr. U> 
wards's indorsement: at that time Mr. mm 
had not mentioned that, nor shewed biAlhl 
note; when Mr. Kinnersley haviojp owneathi 
note to be his hand- writing, immediately a '^'' 
but how it came to be indorsed by Mr. £di 
I know not ; naming thus the particular p 
who was the indorser of this note. He nMb 
that Mr. Kinncruley was in a great oonatcmii 
tion at that time, and said Uiat he waa an aa- 
done man, among other expressions. And hi 
said likewise, that BIr. Edwards was a gCBll^ 
man of substance \ and this he declared, Uioagil 
Mr. Bird had not shewn him tbe note at tB|( 
time: I am (said he) an undone man; Ik*- 
£d wards is a man of substance. This he Mi4 
before that the note was shewn to him, or wm§ 
declaration was made by Mr. Bird, relating tt 
Mr. Edwards's being the indorser of this nolii 
He said further that he was nut in a capacitf 
to pay this money ; and that tliey roust appqf 
to Mr. Edwards, who was a substantial aia% 
for it. Gentlemen, this was made use of aa# 
sort of defence at this time to avoid this thiog^ 
to put it off from himself by this argooMBti 
why Bird should not come upon KinneraliEy 
himself, who was uncapable of_payinr hnBf 

Iwards, 



k 



but take his remedy against Mr. Edi 
was a substantial man. He was cross-i 
mined: tbe counsel for tbe defiendant asJbed 
who was the person that recommended Mc» 
Hales to him as the borrower of this monev 2 
It was answered. That it was sir Bibv Lmu^ 
He was asked on whose credit he lent ut no^ 
nej, |h,iialfii'» tc Ur. Edwaada'tf tt vw 



WpA, m it mint tiv h) such a ir&ss* 
!B, aiNm this Ihenote mts read ^ for it 
rivea directly from the hands of the 
t flflin, tfattt was vofiicient cau^e to 
Mie, and hy it hefore you. Accord - 
ptpeara to bw dnte Augmt 16, 1727» 
MMiisMfy iMACy nimriug thns : 

■liae la pay to Saai«el £dwardi| eiq. 

4irft witiiiu tbrae HiOBiha after date, 

lif ftw#lfia huulred and aixty pounds, 

noBMrad, 

-* '* Ttaoxaa KuaEiisLsr." 

Ma 

BCi the {ndorsemeDt : and there, there 
■D the top, ** Pray pay to the order 
I there ia a large Diana, then comes, 
ae rtofrived," and then there is the 
ioB «« Samuel Edvrards." Gentle- 
m ibis it is proper to take notice of the 
DBS made by the counsel for the prb- 
011 the manner of the writing of this 
mt. Thev obserre that this must be 
pffiom by Mr. Edwards of his name for 
Br the nassm^ of a letter free : it ap- 
rv probable frum the manner of bis 
nrank. « Free ' and not * frank ' is 
Alt he makes use of: and upon what 
v what remains in this note, they say, 
wt top it appears that it must be cut 
wmie other note, and that there is an 
! irhere thev suppose that some other 
BK ; that there is the appearance of 
If, not a blot, but tlie appearance of 
nder of a lelter or figure on this place, 
! appearance of a little dash from it. 
say that ' for the' issubsiiituted for 
* firec ;• that it appears by the ihick- 
le letters, by the ink, and by the man- 
ein the letters are put thore ; anil by 
of tlie ff which !\ir. Kdnanls makes 
ird * ffree ;' and that there is still the 
ee of the remainder oFone or botli the 
>on this, gentlemen, you will consider 
the o and the r have not the appcar- 
ome other letters under them, aud bo- 
e /*and the r. It is plain upon sight 
tne other letters seem wrote of the 
Rigth and thickness wIJi the /* and r. 
«Gms paler and thinner, ..ud of a dif- 
k from the other letters. And then, 
!n, the word Mho' is here written at 
Yon will consider whether this seems 
are been from a nect'ssity to put some 
ird to fill the whole compass of the 
ree.* Now • the ' seems not wrote at 
le time, and with the same ink with 
eceired.' If this had liern wrote all at 
etime, it is prett}' extraordiuary that it 
■ol hare been wrote even. The / is 
a strait line even uith * value received,' 
I sioks a little, an*] the r comes under. 
D oonsider, gent!emen, whetficr there 
icicat room, and whether this was the 
r patting it so. Tfaese considerations 
t we of to make it probable that it was 



A.D, 1729. 



[254 



wrote at difllprent times : if so, it ia most pro* 
bable that it was at first * free,* and that th« 
otiier worda were substituted aflerwards. 8o 
that these are the obserrations as to the manner 
of writipg it, wluch you are to consider whe- 
ther they are tme, and there be a foundation 
for them or not. Mr. Spicer then was called, 
who hath been a clerk to Mr. Edwards in th« 
Escfaequer between ten and eleven years, but 
hath been in his service about twenty- four 
years. The note was shewn to him, and h^ 
teils you, that as to the name, he takes it to \m 
the proper hand-writing of Mr. Samuel Ed- 
wards, nis master: the J he also counts to b* 
bis. Upon his observation and oath, which it 
evidence to be left to yon, the word * for ' i» 
wrote oyer otiier letters, and he believes, upoa 
his oath, that the first word was ' ffree.' Htt 
saithflhat Mr. Edwards, vrhen he mdcetb % 
frank, makes nse of a ^as in the mauoer that 
it here stands. If it was made fbr * valae re- 
ceived ' at first, it is pretty extraordinary that 
a ff shouM be written, and not a single f as 
usual. Wh^ (saith he) it is my maater's inaal 
way of writing ' ffree.* And then he saith thai 
he always wrote ^ ffree' and not 'frank;' 
which is material, as the word *• frank ' might 
not so well correspond with tlus alteration. Hs 
saith that the r seems visible, and to stand be- 
tween the and r. You ^11 see whether 
there be the remainder of any such letter or no $ 
since he aaith that he doth think that the r ia 
visible. He tells you, that as he is clerk \m 
ftlr. Edwards, so he is acquainted with bis pri- 
vate affairs, relating to his estate and the like» 
and that he doth not know of any money trans- 
actions between his master and either of the 
defendants ; that he is so well acquainted \i ith 
his affairs, and the nature of his employment 
under Mr. Edwards such, that he believes that 
if any such dealings had been, it would have 
come to his cognizance. He tctU you, like- 
wise, that Mr. Edwards is not a person that 
nseth to deal this way : it was very proper ta 
ask him this, because it is common for many 
persons to indorse notes in this manner, m 
saith that it is not his usual custom : it cometb 
not into his public business ; and, as to his pri- 
vate transactions, he never knew him to do it. 
They were then going to call a witness to prove 
the body of the note to be Mr. Kinnersley'a 
hand-writing. Upon this, Mr. Kinucrsfey 
took upon him to admit that it was all his own 
hand -writing;. So then it is to be taken for 
confessed, that tlic body of the note was his 
writing. It is written in this manner, 

^'Au^ii 16, ir^r. 
" f promise to pay to Samuel Edwards, esq. 
or his order, three months atier date, the sum 
of twelve hundred and sixty poundii, Ihr Taloe 
rcoeived, Thomas Kimmebslet." 



" -f . li«60. 



Well, gentlemen, after this, the cpiinscl for the 
prosecution sny, that Mr. Kinncrsley iKith ia 



855] 



3 GEORGE II. Trial qf Wnu Haks and T. IRnnerdey^ 



effect confened as ranch as amoanli to what 
tliey stand io need of to oonvict bim of thiafor* 
)(ery. First, they call Mr. Wrig^ht, who was 
present at the exanaination of Mr. Kinnerslev 
uefore sir Richard Hopkins. Mr. Wrii^t tells 
\ou, that at that time tlie defendant Kinners- 
ley owned that the note was all his own hand- 
writing ; that Mr. Edwards thereupon asked 
bim why he drew the note payable to him, 
when there never had been any dealings be- 
tween them. Mr. Wright sulh, that the de- 
fendant Kinnersley owned at that time 
that there never had been any dealings 
between them, and likewise that he did not 
know Mr. Edwards, nor had, to the best of his 
knowledge, ever seen him till then before sir 
Richard. But he said, that the reason of his 
doing it was this : that he was indebted to the 
other defendant Hales in a sum of such an 
amount and more ; and that Hales desired him, 
the defendant Kinnersley, to write him a pro- 
miffsory note for that sum ; that he asked Mr. 
Hales whom he should make the note payable 
to, and Mr. Hales said to Samuel Edwards, 
esq. and that accordingly he wrote the note in 
that manner that it now appears in to you upon 
the request of Mr. Hales. Mr. Wright tells 
yoo, that at that time he had heard what had 

Sast relating to the discourse with Bird ; and 
e told him, Why you have expressed your- 
ielf as if you was a ruined and undone man ; 
why did you say that, if Mr. Hales requested 
your writing him a note for such a sum as 
1,260/. ? Upon this, one Mitford said to Mr. 
Kinnersley, You shall not go on to declare 
yourself any further, you may do yourself an 
injury. This is made use of as a circumstance 
by the kin^r's counsel, that Mr. Kinnersley was 
going to explain himself further if he had not 
been prevented by his friend or solicitor, who 
knew the consequence of a confession of this 
nature.* Mr. Wright tells you, that at this 
time when Mr. Bird was examined, and said 
that he had not at that time shewed the note to 
Kinnersley, when he said, that how it came to 
be indorsed by Mr. Edwards he could not tell. 
Mr. Edwards hereupon asked him whether he 
knew of this indorsement before Mr. Bird 
shewed him the note P That he answered that 
he did, but that how it came there he could not 
net tell. So that that is the substance of his 
confession in that respect, that he did know of 
it, though he saiil he knew not how it came 
there. Sir Richard Hopkins likewise was 
called to give an account of what passed before 
him: hesaith that he took minutes of what 
passed ; that it was in the latter end of Sep- 
tember that be was brought before him charged 
with forgery of two notes, this of l,2(jO/. and 
another of 1,600/. ; that as to this note, it 
seemed to him an altered note, which wan the 
occasion of his more strict examination of the 
matter. He saith, that he examined Mr. Bird, 
who advanced this money, who said that before 
he bad shewn this note to Mr. SJnnersley, 
when he had only told him that he had a note 
•f liif himd ItiX with him for a seciirityi he 



answered, I know that yoa have: it 

1,S60/. payable in three months to fe^ 
Edwards, esq. or his ordefy and b indor ■ 
Samuel Edvnurds. Sir Richard hereapoi^B 
Mr. Edwards if he had had any dcahnc-: 
Mr. Kinnersley ? Who said that ha h^ 
Kinnersley also said the same, but said ^ I 
drew this note payable to Mr. Edwards ^ 
request of the other defendant Hales, ti^ ^ 
he was indebted in' that sum, and warm 
that he did not know Mr. Edwards, nor ^ 
best of his knowledge had ever seen hint b^ 
that time. He saith, that upon his obse ^ 
that it was very strange that he should ^ 
such a note payable to a person with wbo^ 
owned that be had no dealings, and who 
an ntter stranger to him, Kinnersley wug^ 
further to open his mind, but one wSs^ 
stopt and prevented bim from going 
Richard Davis, who is the constable that '> 
prehended him, was next called to give an i 
count of what passed when the warrant «i 
issued out, and given him to be executed. 1 
tells you, that because Mr. SJnnenley livi 
out of the city, he went to a publk: has 
within the jurisdiction of the city, and scnl 
porter to desire to speak with uim ; but i 
ceived answer that he was not in town. I 
enquired when he would be in town, a 
went himself and made a pretence of a 0M| 
wanting to be married. At first came i 
the daughter, and tlien the mother, wh 
he acquaint^ with his business: at 6 
they seemed to say that he was not at boB 
or did not readily say where he was; I 
after that he had given an account of I 
business, he was carried into the parioi 
and then Mr. Kinnersley came to him. i 
told him the business of the marriage : t^ < 
fendant thereupon asked him several queatKN 
and, among the rest, how old the lady to 
married was? This is necessary to be mi 
tioned, because they have insisted upon it i 
proof of his honesty, that he asked whcti 
she was of aj^fe or not ? And being Udd t 
she was not, then asked whether there waso 
sent of relations or not ? If (said he) there 
not, I will not be concerned m a thing of t 
nature for 100/. He was told that the bi 
tlier was with her at the Magpye tovem, i 
asked to go thither for satisfaction, but wo 
not go. Upon this the constable saith, that 
went away, and made it liis business to wa 
and see when Mr. Kinnersley came out. 
an hour or two he came out, he dogged him 
theI\1inories, then when he was come wi 
in Aldgate, he told him that he had a warr 
against him for forg^ery of a note of ],3^ 
lie then desired him to go into a house w 
him, where he asked to sec the warrant : Ui 
seeing it, he said, that if the gentleman I 
sent for him he should readily have come 
bim. Being asked why he denied himsc 
He anstrered, that be was afraid of being > 
rested for ilebt, and that Vas the reason of 
denying himself when the constable caino 
enquire for him. lie then owned that the A 



tt f krf wilii% i but jud that he 
')m the ndorMmciit came thert. 
vilhvhiiwas nid by the coonael, 
ly Ai ■iiiMiii, €90ooeniiiig what 
Ub bmi hie ezamination bcfoie 
Bipkiiii, aod to Mr. Bird at hia 
vbn he came to him. Thia 
at ta the fact The counsel 
go on and aaj, that there 
frinM eonrespondence carried on 
tva deftnoantay which they in- 
■lawiancii to make it likely that 
krHB. They called to this, first, 
I Bfebi who aaith, that both the de- 
wilSBMt froqnantly at hia house ; 
" ' I fnmntly came there early in 
waoid aometimea walk about a 
liae, would ask aometimes if the 
WbRothera witboot naming him, 
bfw whom be meant, baring fre- 
dieai together ; that some time 
came in, Halea sitting by 
m go by and went to him ; 
Eiaaersley came in and went 
eite-room into a back room, and 
Mlow afier him, and they would 
tligiether; Kinnersler sometimes 
Rrt at one door, and Hales imme- 
artat the other ; that this contioned 
• OMMtb or three weeks beibre Mr. 
Mcbeosion; that onetime particn- 
hlaDerriey paaaed by and went down 
sad Ifr. Halea aeeing him, rose 
■Mtaot after him ; this, he saith, was 
MSth beibre the defendant Halea was 
ifi He aaith, that they seldom sat 
ifte aablie room, bat went into a pri- 
Jobn Brooks was next called, who 
Im keeps a coffee- boose io Dnwn- 
yHi i Westminster. He said, that Mr. 
gwfcy osed to come someth&ca to his 
jPhsK, send for a porter, and git e him a 
flNr Mr. Hales, who hath come to him, 
Hhf htte gone into a prJTate part of the 
Mm there they hare staid fbr three or 
W^^t^ to^ber ; that it bein? in the eren- 
n hitfa thought them in the dark, and 
Mike serf ant why a candle was not car- 
MiaB? Who hath answered, that he had 
Mthcm one, bnt they refused it, not car- 
Ibleioterropted ; that they met thus about 
mm foor times in a month, a little while 
plHr. Hales was apprehended . M r. Jane- 
1^ was called, who saith, that he hath 
Mk two defendants aereral times retire up 
bl^|Mlier at hia coffee-house. This, gen- 
n,B relied upon, and given in evidence, 
ke that there waa a correspondence be- 
■ Am about some affairs not so proper to 
iMSfsd in public. This is the substance 
b evidence on the side of the prosecution : 
Ikeesunsel for the king tell you, that as to 
^ sf this nature, they must be done in a 
'prirate way in order to prevent a disco- 
"f it caunot be expected that they would 
pmns to eee aoch a thing done ; that the 
evidence, therefore, that can be given is 



Ju D. 17». 



[£58 



dremnilaaee. Well, gentlemen, the defen* 
danu come upon their defence : they appear 
by different counael, and make a separate de- 
fienoe. The counsel on the behalf of the do* 
fendant Halea insist that there waa a debt du« 
from Kinnersley to Hales, for which this not* 
was given ; that this doth appear from the ae* 
veral declarationa made by Mr. Kinnersley 
from time to time. They rely upon this ai 
evidence of such a debt for money ailvanced Io 
him, and that this note was given by the de- 
fendant Kini^ersley for such a debt. Thcv tall 
you that-Mr. Halea being a bankrupt, and there- 
lore it not being firoper to have such a note in 
hia own name, because it would be liable to bo 
claimed by the asaigneea in the commission of 
bankruptcy against him, that therefore it wan 
proper to make oae of the name of another per- 
aon ; that Mr. Edwarda waa never affected or 
injured hereby ; that part of the monejr hath 
been paid, and if they had had a little patience, 
as 4001. waa paid, ao the rest would have beea 
paid. And tbongh they admit that the mak- 
mg of such a note in toe name of another to 
advance credit without hia leave was crimuwl, 
yet it did not, they aay, really affect or injaro 
him. And then to shew that there waa a reo« 
son or foundation for the giving of this note^ 
they said that they wonld call witness that 
there waa an account stated, upon which thia 
money appeared to lie due. They called Ro- 
bert Burkit to it : bnt he saiih that he knoweth 
of no auch account, it is all imagination ; thai 
his name was made use of without his know- 
ledge ; that he knew nothing of any money 
ever due between them : so that it w plaui. 
that that witness is lost in tlie ezamination ao 
to any benefit to them. They said tliat thev hail 
ao'rther witness who happened not to lie here : 
this is the substance of the defence of the de- 
fendant Halea. Kmnersley then comes ou hia 
defence. His counsel insist that he is not evi- 
denced to be cooeemed and knowing of tbio 
forgery ; that as this is a crime of a very hein- 
ous nature, and deserves the greatest punuh- 
ment, ao it is necewarv that tlie dearest proof 
should be given you before you convict him. 
Tbey say that bis character likewise rMpiirei 
stronger evidence than oilier* ; that his cradit 
is more concerned than othem, because the 
very ezerciae of his function deptfmls up<Hi hia 
credit, witboot which lie will be ol imi um; in 
the parish wh<rr« be doth or aiay miiiisti:r. Ami 
tbey say, that it appears by tlie evidcnci^ <hi 
the side of the prosecution, that Ih' i« ti**y 
careful iothe d»setiar|^« «if \\\% ftiucii»ii. tilii^^h 
they insist on from his refusal to \i^ < iiuo"!*!**' 
in a marriage without a lioeooe and «<'(«•<'" ^ ^ 
friendH, it Mng contrary to actn «i p«ili«"«»«* 
and to the canons of the cburrh. nud ibvi tiiej 
«uppnne him as cautious in «iih»t lb*" J?*- ^'^.^ 
say, timt the thing itself ik ii»>i«l* <*"^ '^^ 
it IS an innocent and harrrilr«k thrna ; ">*- ^ 
iierson is hurt by auoti«<r'« «if •»•"!?'' y* 
liim a sum of money by aof-li « ii«4r : >'• ' ^^ 

pemoii, indeed, who r<»«» *«••'*• ■ ^^^ * ***** 
to an action for the iftottvy, but that than «^ •• 



<»■ 



259J 



3 GEORGE II. Trial of Wm. Hales and T. Kxnnerde^^ [ 



injury done to the person to whom it is marie 
payable ; that therefore as to Mr. Kinnersle> 's 
subscnbinin' a note fur so much money payable 
to Samuel Edwards, esq. especially when it 
was done iiprm the recjuest of the defendant 
Hales, upon account of a debt which was due 
from bini to Hales, and for the oon?enience of 
Hales, it was an innocent tliinfi^ ; that Kinners- 
ley was to pay Hales so much money, and 
riales himself desired a note for it in this name. 
They say that Kinnersley might he induced to 
do this from the credit and character of Hales, 
and from their former acquaintance ; that he 
was the minister in his parish when the 
partnership Was between him and sir Ste- 

{ibcn Evance; that notwithstandinfir his mis- 
ortunes since that finit acquaintance, it is 
plain that he hath been corres|)onded with 
by persons of credit, therefore there can be 
DO reflection on that head on Mr. Kinners- 
ley. And they say, that as there was no- 
thmjf culpable in p^ivin^ of the note, so nothing 
amiss liaih happened thereu|ion ; that if Mr. 
Hales hath dono any thing amiss, it does not 
affect Mr. Kinnc rsley . Though they raise Mr. 
Hales's credit at first, yet atlerward they sinic 
it, and seem to throw the blame upon him. 
Tliev plead also, that there is no evidence that 
the mdorsement was upon the note when it was 
subscribeil by Mr. Kinnersley. If it was after- 
wards (say they) indorsed with or without 
authority from Mr. Edwards, it will not affect 
Kinnersley, except there be express proof that 
he did it. Thev say also, that there is no proof 
of any franks clelivered to Kinnersley but only 
to Hales ; that he bad not therefore the oppor- 
tunity that Hales might have ; that therefore 
he is not involved in that circumstance or tiic 
inducement hereto ; that I lie proof or evidence 
given is nothing nofainst him. And then (say 
they) to what purpose bhnuld the note be con- 
trived to be inil(M8(^d with the privity of Kinner- 
sley, when he hath no manner of benefit thereby. 
Hales having received the money ? They ask 
the question c\i\ honv^ and thence infer that 
Kinnersley could n«)t do this. And they insist 
upon it in point of law, that the writing of this 
note can be no fraud in him, he having done 
what renders him liable to an action. And to 
shew that the money was due from Kinnersley 
to Hales, they have tailed several witnesses to 
shew that there was a foundation for this note. 
Mr. Peter Marsh was called : He saith, that 
about ten or eleven years ago he brought a 
bond of 50/. to him made by Mr. Kinnersley 

Eayabletobim. Mr. Hales told him, that Mr. 
Linnersley owed him this money, and had 
ffiven him this note made payable to* him, which 
he desirefl him therefore to get for him. He 
knew nothing of the matter, was surprised that 
liis name was made use of, and so returned the 
bond again. This is insisted upon, gentlemen, 
to shew that there were transactions l>etwcen 
Kinnersley and Hales. Now wlietlier this 
|imvea a debt due from the one to tbe other, or 
|iroTM ao extraordinary method of taking bonds 
IB tht ii|n« of pcffOM whboai thtir ooiiitat, 



Tou are to consider ; especially when ^o« i 
Know that if this bonit had been put in mi 
Peter Marsh, he would have been liable t 
cover the money. Well, then William Cn 
iK next called. He saiih, that he reeeit 
Janeway's coffee-house about 60/. a debt 
was due from Kinnersley to him. He reo 
it of the defendant Halei, and Kinner»ley 
there with him at that time. He saith, 
Kinnersley was the original debtor i^f 
money, and that Hales gave him his note i 
He saith, that Kinnei-sley had borrowed ol 
an hundred and odd pounds ; that he bro 
another gentleman to be securitv with bii 
it ; that at the end of six months he oouk 
get his money ; ttiat he enquired of Kinne 
tor it, who led him a dance fi-om place to | 
after him for a considerable time ; that a 
he was forced to sue for the money ; auc 
covered half from the other gentleman ; 
he then prosecuted Kinnersley for the i 
that then Kinnersley met him with Mr. I: 
at some tavern, and then Hales told him 
he was to receive about 6 or 700/. within « 
three months time, and then he would pay I 
He saith, that upon that offer of Hales he 
a note of Hales, and a new one of Kinnet 
for the money ; and that in February 
he got the money as before- mentioned, 
received it at Jaiieway's coffee- liOU»e. 
he saitli, that some little mutter (about 
shillings or thereabouts) was due for 
charges, for which he gave him his i 
Hales gave his note for the nnyment of t 
of Kinnersley 's, a debt of 50f.,*and he gave 
reason tor it, that he was to receive withii 
months about or 700/. for him, and then 
he could venture being security for Kinner 
This is a transaction of quite another na 
it is so far from proving a debt from Kinne 
to Hales, that it rattier proves Hales ind« 
, and becoming security for the other. \ 
\ then John Wells is called. He saith, tbi 
i knoweth not of any money due from 
i nerslcy to Hales, but that Kinnersley < 
: him 100/. ; tiiat afterwardi this money 

• |>aid to his attorney, by whom or how he < 

• not tell. Mr. Simpson, who is a partner 
' Mr. Fowler, is then asked concerning 
' borrowed upon some lottery tickets of 
j Fowler, and is asked concerning this mi 

how, where, and by whom it was ilischar 

He saith, that he it as not at tbe shop 

knoweth not by whom and hotv it was 

charged. Mr. Kinnersley, upon this, b| 

himself to one of the !;eiiileiiien of the , 

>and interrogates him how this nmney was 

j Mr. Fowler was liereiiptm sworn tu give 

, dence. Upon his oath, he saiili, that ha i 

knew of any transaction in the name of H 

that he never saw hini at his shop. That 

Kinnersley there was a transactioo uf ro 

borrowed on lottery tickets, but he kno 

nothing of E^ules's being conccrnetl. Aa 

person is examined whether he ever g; 

<note on Mr. Hales's accouiii, or at bis re 

paid any mouay ? He saith, that be iie?« 



JiiT a Misdemeanor. 

lowctfi thtt iny other did. They tell 
», that tbe witncMeii for the prosecution 
im gnat netsure proved the denial oi' 
ioDcrslej of bisknowinH^ of the indorse- 

bal the? call tbemseWes for further 
itMenoeorit. They cail Mr. John Hayes, 
ilh Ibat he was present at tbe examination 
ijHieralev before sir Richard Hopkins ; 
ibMrime the defendant Kinnersley owned 
ijStf the body of tbe mite, but at the 
iMt said, that how tbe indorsement came 
besald not tel]. He tells you tliat the 
I ihac was g^Ten to tbe defendant Kin- 
', was after this declaration made by 
fcaithen there was an admonition that he 
he eaotious in the answers that be japiTe. 
drew Grants likewise was present at that 
atioo. He saith, that that was all Ibat 
illhat time, and that he was notstoppeil 
Mitibfd, but onlv a reasonahle caution 
im that he should not betoo much in an 
•r the like. This is the substance of 
made by the counsel for both tbe 
It is the right of the counsel for 
f to reply. They say, that there bath 
I avidence of transactions between Kin- 

aod Hales to tbe amount of any such 
I the note is for ; that if the note was 
rith a design to ^efraud, both mast be 
r guilty ; and that it is a very eztraordi- 
mg that this note should be written by 
mmiey as a promissory note/or such a 
yable to Samuel Edwards, esq. when it 
itappear, on the defendant's part, that 
rat any correspondence between £d- 
■d Kinncrsley,'and on their side it bath 
isfcd that there was no such correspon- 
. that it was very extraordinary if this 
IB ffiTeti for a debt due, that it should lie 
i the name of one with whom they had 
ifY-dealingswhatsoeTer, and of er whom 
aid not be supposed to have any power ; 
is therefore seems to be only to give a 
> the note ; that it could not be of any use 
ever without having tbe name of some 
nf drcumstaoce and condition to it who 
le obligefl to pay the note ; thut this note 
ive been thrown upon Mr. Edwards, ap • 
bey say) from the declaration of Kin- 
, that he was an undone man. If then 
if any use to borrow money upon or in 
•er way, it must be from the substance of 
iwards, and not from the poverty and 
icy of Kinnersley. They insist upon 
cumstance, and the declaration of Kin- 
, that he knew of that indorsement, 
Ikiw it came there, be said that he knew 
iod further they say, that as the name 
'• Edwards's own baud-writing, if that 
nd * ffree' was wrote unon tbe paper, it 
» before the writing or the hofly of the 
It caanot be imagined that the words 
et there before. It cannot be supposed 
r. Edwards would set his name to the 
ftce,' or to any other woid on the back 
Me pffomising the payment of 1,260/., 
to him or his order. They 



A. D. 1729. [262 

insist, therefore, that this name and the word 
*• ffree' were upon the pa|ier before the note was 
wrote, and that this is a strong and reasonable 
evideuce that Kinnersley must be privy lo the 
name of Edwanis, and tbe indorsement at that 
time. After that, Mr. Kinnersley desired to be 
heard, and he was indulgetl : but as to thai you 
have been informed, that in indictments for 
misdemeanours, whatever the defendant saith 
for himself, it will have no further validity than 
as the counsel insist, and evidence is brought 
for him. Tbe cireumslance, therefore, is very 
different from what is allowed when persons 
are pn>secuted in capital cases. However, you 
have heard how he bath declared in the most 
solemn manner his innocence. You are to con- 
si<ler whether that is of any validity, unless 
there was evidence of such a debt due from the 
defendant Kinnersley to Hales the other de- 
fendanty whether you will take it upon his 
word. Tilts being the evidence on both sides, 
tbe first question is, whether tbe indorsement is 
forged, because till you determine that it is a 
forged indorsement, there can be no prosecu- 
tion for tbe publication of it. If it be a true 
indorsement, no person can be guilty of the 
publication, mncn less can Mr. Kinnersley, 
who did not deliver the note: that therefore 
lieth upon the defence of Mr. Hales, which is 
not made but by the defence of Kinnersley. 
You are to consider then the opjiortunity that 
tlie defendant might take hold ot from the re- 
ceiving of franks for several years from Mr. 
Edwanis ; and you will consider whether there 
is any clear proof, or so much as the colour of 
it, that Mr. Edwanis was privy to an indornc- 
ment of this nature, or there was any occasion 
for such an indorsement. If no such money 
was indeed due, to what purpose should the 
note be indorsed ? Upon the best observations 
that I can make, 1 see not any evideuce to 
raise a reasonable presumption Ironi, that this 
was a fair and justifiable indorst-ment. if it 
was not an imposition on Mr. Edwards, because 
it makes him liable as an intlor^<er for the sum 
mentioned in the note, if you should find thaty 
yet you are to conttider whether it is fhir to 
make use of another's name in a note ; for Mr. 
Kinnersley, who by his own confessiiin is a 
poor, undone man, and whose living is under a 
sequestration, to make a note indorsed, by an- 
other iierson who can never be reimbursed by 
this |>erson who subscribed the note, it i^ta very 
extraordinary way ; though they say that it is 
an innocent way of raising money, for a |)er- 
son in custody, or liable to it, to make use of 
the name of a substantial person in such a iiote^ 
\t hose credit must be at stake for the money. 
And then as to the nature of the note : if it was 
only a promiss(»ry note tor so much money 
payable to Samuel Edwards, esq. it was not of 
such consequeuce, tor then he was not liable : 
but he is liable to the payment «inly upon the 
iiuiorseinent of such a nuie. Why ihen, gen- 
tlemen, you are to consider, wlu'ther thi<i uote, 
when Mr. Kinnersley hud wrote it, could tie of 
any use in the world unlcs» it w&a iadorsed af« 



ies] 



$ GEORGE IL Trial of Wnu Hates and Tn KimerJey. 



tsrwards. Whr then this note is either a pre- 
paration to obtain "Mr. Edwanls's roluntary in- 
doraement for a secarity, or an imposition upon 
bim. Hath an^ evidence been prod need to 
shew a probabihty thct Mr. Edwards would 
gire him that liberty to transfer his own insuffi- 
ciency and poverty upon him, and make him 
liable to Mr. Edwards, which can have no effect 
but by an indorsement ; doth not Mr. Kinners- 
ley put it into the power of Hales to negociate 
this note ? Therefore I mnst inform you, if two 
persons contrive together to draw such a note, 
And make nse of it, both persons concerned in 
the transaction, in my opmion, will be guilty. 
Forgery is an entire ract. Though one person 
doth one part, and another the other, -both are 
^uallv guilty.* Gentlemen, it is material, as 
liath been observed, to consider when this in- 
dorsement was made ; and if it was a forged in - 
dor8ement,you ^vill consider when it will appear 
to have been indorsed. You have been truly told 
that this can be only known by circumstances : 
therefore you are to consider, whether the name 
uf Samuel Edwards can be supposed to be set 
tliere after the note was wrote. Well then, what 
is the proper and natural way of understanding 
this transaction ? If there be the name of 
a person on any paper, where there is room for 
making an alteration, what is natural ? Why, 
to transact on the other aide what is necessary 
to supplir and make that complete, without 
vhich the name would be to no purpose. 
Therefore, that is a material consideration $ if 
it ia impossible that the name could be wrote 
mAer the making of the note, whether that be 
not a reasonable presumption that be saw this 
indorsement when he wrote this note. Sup- 
pose the words only * ffree Samuel Edwards,' 
It was not proper to write this note on the back 
of it. If this indorsement was made without 
bis privity, how came he to know of it when 
be came to Mr. Bird ? And upon Mr. Bird's 
telling him that he had a note of his left with 
bim, immediately answered, ** 1 know that 
you have ; it is fur so much, payable in three 
months to Mr. Edwards, but how it came in- 
dorsed bv him I know not ;" when Mr. Bird 
iwearstbat he had not then acquainted him 
with the indorsement, nor showed him the note 
mt that time. No evidence hath been produced 
to shew how be came to know that it was in- 
dorsed. He declared, indeed, that he knew 
not how it came to be indorsed : bnt you are to 
consider, whether that part wherem he de- 
clares biy knowledge is to be regarded, or what 
be declares he knows not of, A declaration of 
this nature will be taken most strongly against 

* See Eitt'0 Pleas of the Crown, ch. 19, 
•.51. 



him. Consider, therefore, whether this 
part of his declaratkm be sufficient to disc 
nim. If he knew that it was indorsee 
should have some evidence upon what ac 
it was. As to the rest, as to the eharact< 
coat, or Uie like, you are to try bim npc 
same law with Hales. I know not wh 
habit he wears ahould exempt him Iroi 
common rules of proof. As to tbo port 
circumstance of his usefulness depend! 
his credit, that is left to yon. But the 
law is made for one that is for aaetber : 
are therefore to consider of it. If this be 
indorsement you must acquit both. I 
are satisfied that it is not, but the indoro 
is a forged indorsement, whether eithe 
which of the defendants seems to he |^ 
You are to consider tbo nature and di 
stances of the transaction, and whether 
appears any thing to distinguish the one 
the other, and accordingly give your v 
against the one or the other. If you dei 
the note will be given to you. 

Jury. My lord, if your lordship pleas 
will take the note up with us. 

Kinnerdev. I desire to be heard — ^- 

L. C. B. Not in case of a misderoeanc 
know not any instance in whioh it hath 
allowed. 

Kinnersley. 1 beg leave, my lord. I 
the Lord to witness — — 

L, C. B. All I can say is, if you b) 
mind to aver or affirm any thing, the < 
would rather be irregular than abridge j 
any thinif. 

Sen. Whituker. My lord, it never wi 
lowed; after your lordship baa summc 
the evidence, and the jory gating out : 
strange Mr. Kinnersley will behave so. 

Att. Gen, Is it, my lord, to be allowf* 

L. C. B. The gentlemen have insisted 
it. You cannot be heard. 

Kinnersley, By the living Ood, 1 kno^ 
thing of it ! 

CL ofArr. [Calling over the Jury.] 
you all agreed in your verdict P 

Jurymen, All. 

Clerk, Who shall speak for yon r 

Jurymen, Our foreman. 

Clerk, How say you, is William ! 
Guilty of the misdemeanor wherewith he i 
charged, in forging an indoraeroent on a 
missory note for 1,960/. in the name of Si 
Edwards, esq. and publishing the same I 
ingitto be forged, or Not Guilty } 

Foreman, Guihy. 

Clerk. How say you, is Thomas KhnM 
Guilty of the satd'misdemeanour wbeviwj 
stands charged, or Not Gnilty. 

Foremgn. Gailty« 



Trid^fWmamHaki. 



A.D. 17C(k 



fj. The Trial of William Hales,* for a Misdemeanor, in ob- 
taining from Thomas Bird the Sum of Seven Hundred and 
fifty Pounds by false Tokens^ &c. : 3 Geouge H. a. d. I729. 






Tbe Jury calM orer agaiD. 
te«Mi OyEZ, Oyez, If any om can 

I^DICTMCn'. 

Hales ttands indicted bj the name 
Halea, &c. for falsi? and deceitfully 
_ tba ran of 7502. of Tliomias Bird by 
^AhttDken, m. a promiaaory note, in these 
' MIowiag: 

*< Augtat 16, 1727. 

• ^ I proniae to pay to Samuel Ed ivards, esq. 

Illiisider» within three months after date, 

fcanof twelve hundred and sixty pounds, 

•^■he rceeif ed, Thomas Kinnersley." 

On vhicfa Qote there is the foIlowin|^ ind<ir8e- 



"hiy pay to the order of for value 

Sahubl Edwards." 



iif great damage of Samuel Edwards, esq. 
ku To ibia indictoMnt he hath pleaded nut 

Wr. Strange, May it please your lordship, 

iiaia indictment against the prisoner Wil- 

" la Bales only . It seta forth that be, having 

IkbpBMessibn a certain writing purporting to 

hi promissory note made in the name of 

Ihiu Kiouersley, wherein the said Thomas 

faniLy is supposed to promise to pay the 

Mif lfS60/. to Samuel Edwards, esq. within 

te nonths, with a forged indorsement of 

Ir. Edwards on that note, did, in March last, 

AUj sad deceitfully obtain of Mr. Thomas 

> Ini, tbeaoni of 7S0/. by that false token. 

K islsid to be contrary to the statute in that 

ott nade, to the damage of 8amuel Edwards, 

M^ &e. to the breach of his majesty's peace, 

^ to the ill examph! of hia majesty's subjects 

■fta ease offending. 

Mt. Gen. My lord, this is an indictment 
VMBst Mr. William Hales, for obtaining a sttm 
^9tamey by the false token of this note. For 
ihwa will only call Mr. Bird. 

Mr. Bird sworn. 

4ll. Gen. Mr. Bird, look upon the note, and 
fifSiii account who brought it to you, and 
vbat money you paid upon it ? 

Bird. Mr. William Hales brought it to me 
M March 20th, last. 

Att. Gen. What did be say ? 

Bird, He said, that at the request of a gen- 
flnnan, I was to lend him 760/. upon that note. 

dtt. Gen, Did he produce the note? 

* bsethe preoadiDg and folbwing Caaci. 



Bird. Yea, Sir, I had it then of him. 

Att. Gen. Waa it then indorsed as it is now f 

Bird, Yes, Sir, in the manner as now. 

Att. Gen, How much money did you d«* 
lirer him upon ii?— Bird. 760/. 

L. C B. Pengelljf. Diil you deliver it, when 
he delivered you ihis note? 

Bird. Yes, my lord. 

Att, Gen. Should yon have let him bav# 
this money if he had not produced tbia uoteT 

Bird. No, Sir. 

Att. Gen. What waa it paid in? 

Bird In one or more B^ok- notes. 

Seri. Ej^re. J submit tbia, my kwd : they 
have laid ibis indictment but singly for obtain* 
invr money, whereas in the former they Iayt4 
doubly for obtaining money, or other valuable 
things. It lietli therefore upou them to prove 
that this Mr. Halea did receive in money. 
Though 1 know that generally Bank-notes are 
received as so much money, yet 1 know not 
that according to law they are reckoned money. 
They should therefore have laid it for money 
or other valuable things, it bein^ two Bank* 
notes, and not money : and in tbia manner, I 
supftose, in case of a tender of money, it is not, 
as I apprehend, thought thai a tender of Bank- 
notes is a sufficient plea : Uie consequence then 
is, that the giving of 760/. and the giving of 
surh notes is not tantamount. They ought to 
indict him as the fact really was. 

Att. Gen. Do you know, Mr. Bird, of the 
receiving of this money ? Did he complain of 
his not receiving of this money ? 

Bird. No, sir. 

Serj. Whitakcr. Did he pay buck any of the 
money? — Hird. Yes, Sir, 400/. 

Serj. Whitaker. Was it U|»on the account of 
those HHnknote:^? — Bird. Yes, Sir. 

L. C. B. Then when he paid you bark that 
money, did he complain that he had not re« 
ceived it ? — Bird. No, uiy lord. 

Serj. Eyre. Fray, Sir, i*id he say that he had 
received it? — Bird. Yes, Sir. 

L. C. B, Mr. Serjeant Eyre, I supposa you 
do not insist upon it us necessary that be should 
receive so much money of Mr. Bird, if he 
received tlie produce of those notes it was suf- 
ficient. 

Serj. Ej/rc. My lord, I apprehend that though 
he dill receive the money from the Bank for 
ihone notes, he received not the money from 
the hands of Mr. Bird. He received, indeed, 
what I should have taken lor money. Es|M)- 
cially as the act of parliament hath added, * or 
any valuable thing,' as je\tels or the like. I 
think it should have been so laid. 1 observo 
the words used are, * by colour or means of a 
fahio tuikea.' i woukl aak, suppose Mr. Bird 



«67] 



S GEORGE If. Trial of fTm. HaUt and T. KinnenUy, [968 



bid oTiterei] him to receire it of his cashier, or 
scut llie note to his goldsmilh, whose pBymcut 
would it hare been i Suppoue he had sent him 
tu llie Bunk to rec«vc that bioiipy before lie de- 
lli«red up tlie note, certainr}' he had obtiiaed 
the moony by colour or means of that note. 

Hy lord, I admit that if it had 

hcen paid by his servant or b^ his cashier upoD 
a Dole drawD upon him for it, I lake it that it 
Kiighl have leen laid either way. 

^rj. Whilaktr. The Bauk in that respect 
are but caabiera for the geutlemep that haie 
Uieir notes. 

!4erj. £yre. The oibec indictment kid it 
doablv. 

Judge Hi^tiuUt. Though they mi^t do that 
by wav of caiitios, yet it might hare heen laid 
ibe other way as ibis is. 

L. C. B. Gentlemen of the Jury, yon are to 
COD aider whether tbe indorsement on tbii note 
was a forged indorcement ; for if it was uot 
forged, tbe defendant cannot be said to obtain 
Ibe money by a false token. And further you 
are to consider, aa he obtained this of Hr. 
Binl by thii false token, whether it ever came 



to his hands Or not. You are to coiuiiler apos 
ibe erideuce that be never cumulsiued that ha 
had not received the money fur iboie bills, but, 
on the contrary, paid back 400i., jiart of iba 
money, wbelber he would have paid it if ha 
had not received tlicnianey. Therefore, if yoa 
apprehend that indorsement of the note was not 
a forged indorsement, or that tbe money was 
not |Mid, you are to acquit bim. But if yon 
Judge that'tbc [ndnracmont upon the uule wu 
forged, and the money Jiaid, whtlber it was 
paid hv Mr. Bird in ninney, or in billa um 
whicb be aflerwanis received money, I Ibiok 
that thai makes no difference. 

Jury called over. 
Clerk. Are von all agreed in yonr TCrfidf 



Llerk. Are \i 
Tury. Agreed. 
CUrk. Who sL 



CUrk. Who shall speak for you T 

Jury. Our Foreman. 

Cltrk. How aay you, la M'illiam Haisi 
G uilty of tbe misdemeanour whereof he standi 
indicted in obtainiutf a sum of ntoney by thil 
fidK token, or Not Guilty r 

Fertntan. Guilty. 



476. Tlie Trial of William Hales and Thomas Kinneuslet* 
Clerk, for a Misdemeanor, for fraudulently forging a Pro- 
missory Note, &c. in the Name of Samuel Edwards, esq.' 
for Sixteen Hundred and Fifty Pounds, and publishing the 
said Note, knowing the same to be forged : 3 George H. 
A.D. 1729. 



Jury called and atrom over again. 
Clerk. OyEZ ! Oyez ! If any man can 
joform, Sec, 

Ikdicthext. 
Gentlemen of the jury, William Hales and 
Tiiomas Kinnenlry stand imlicled by the 
names, &c. for frauJuleolly forgini; anoieora 
writing, purporting to bea prumiisory note, on 
the Snd of March, in ihe first year of bis ma. 
jelly's reign, in ibe words following: 

" I promise lo pay to Mr. Thomas Kinners- 
ley, or his order, within six monlbs alter dale, 
(he lum of sixteen hundred and GDy pounds, 
for ibe value received, Simuel EnWABOs." 
and Icnawingly and wittingly publiahing of this 
aaa tme writiog, knowing it to be to forged 
and couaterfeilM. 
Hr. Straoife. May it please jonr lordihip, 
, and ynu genllemen of Ibe jury, this is an in- 
dictment Bgainsl the two prisonera William 
Thomas KiDncreley 
a forth, that they being persona of ill gery of ihii note wai by the same opportunity 
' ' ' " lo deceive Hr. Edwarda, taken by Mr. Ualea, in eoqjuuclinn with 1* 

Kionenley, that ibe former waa. It bath bt 

* 8m the piMfdigy and f<rflotniig CiHii 



Sec. onlheSd of Marcb, in thefirst year of his 
majesty's reign, did forge a writing porporling 
to be a promissory note, &c. The mdictment 
further aela forth, that the defendants did like- 
wise produce end publish IbltipromiBSory cole of 
Mr. Edwards's Itir 1,650^ i tlinl knoning this 
to be a Ibrged note, they did publish Ihe said' 
note liir a true one. Il is laid in oilier words, 
that they forged a nole of Samuel Edwanls's, 
wbereby be ia supposed lo prorai^ to pay lo 
Thomas Kiimerslev. Hitliio six months, the 
sumori,660f..&c.' Toalllhese facts they boll) 
have pleaded Nottiuiliy. 

All. Gen. My lord and gentlemen of iht 
jury, I a[n counsel for tbe king. Oeotlemeq, 
Ibis is an indictment against both tbe de- 
fvndants, fur forging a promiKsory note in lb* 
name of Saniuel Eilwards, eMj. for 1,650'., pay- 
able to Thomas Kinnemley, or order, wjihin 
six miiDths after date, and aliio fur publishinc 
Ibe same. And, gentlemen, lhou)[h il is lai3 
•everal ways in iTie indiclmeiit, tlie note ii 
one and tbe eanie. There arc nol several note*. 
Hales and Thomas Kinncrs^ey. This indict- j Gentlemen, it will apnear to you that this for- 
menlseta forth, that they being persona of ill gery of this note waa oy the same opportunity 
fame, and intending to deceive Mr. Edwarda, uken by Mr. Ualea, in eo^juuclion with Hr. 

. Kinneisley, that Ibe former waa. Itbatbb — 

I obMntd alraady, thai in nicf of Ihii k 



W] 



far a MitdemeHnor, 



A.D. 17S9. 



[S70 



fieti are to be proTed oDly by circumstances. 
PluD tail positive proof is not to l)e expected : 
brtioch circumstances speak the truth often 
BOicpIahily than the other way of proof doth. 
As to II r. Hales, Mr. Edwards being too 
•bligin^ to him, he made use of it to much the 
■BB purpose as in the fbrmer case. But 
ilii«not DOW to indorse, but to make a pro- 

'.Ed- 



nute fur 1,650/., payable by Mr 
vwdi 10 Mr. Kinnersley, within six months 
lAff ^te, and dated March SO, 1728. And, 
imJfiDen, this note is signed on the back with 
^ land- writing of Thomas Kinnersley. The 
Biooerof this forgery will appear to have been 
ike ibe other: but it will appear on the very 
Uet of it manifestly a forgery. Gentlemen, 
the note is wrote on a very small piece of paper, 
vbich appears plainly to nave been cut oil from 
umber paper. And, gentlemen, the words, 
* hx the value received,' are uot wrote upon the 
he with the other words, but a little below the 
kM. The words ' for the' appear done in the 
miie wanner as in the former note that before 
caoe under your consideration. Here \s a ff" 
neb a» before, and as Mr. Edwards always 
iMtb, then an r which appears to be of the 
wae hand, then an o crowded in between them 
«bicb seems net of the original writing. One 
tf Ibe u^a is made to serve tor the first stroke of 
Ihr V, and a long stroke between the two ee'sy 
tbro'ifae other e makes up the word y^. Then 
'rihie received' is wrote in another manner of 
bad. This seems to be the nature of the for- 
fery; and none can doubt it a furt^ery that in- 
apceia it. This appears to be done from n frank 
coier i>btained from Mr. Edwards. And tliis is 
tMrtbinir rcmnrkahie : it is Koinethiii^ odd 
tini'fortlic vaiuf; received' should bc^ v.iotecn 
i&o:.W line. It is plain that the words arf ret 
ibssMli] because of the word wrote h t^rc, and 
^thejf be«jriiiDir.g anothor line may make 
the better appearance. This note is made pay- 
able to Mr. Kiunerslry. He was an absolute 
■tnoger to Mr. Edward?, as it appeared in the 
P'Tmer case. There wns no dealing between 
Ur. Edwards and Mr. Kinnersley, nor no co- 
bur «it any such dealing!, hy which a debt of 
iQch a sum as this should b(Vnme duo from Mr. 
£dvards to Kinnersley. lint, gentlemen, this 
Mtf thuH made for l.ti'tOl., payable within six 
Bonttisfrom Mr.EdwanIs toKmuersley, with- 
out ai!V ilt-alin^s between them to irivc'a foun- 
duiun tor it, in the manner 1 hnve shewed von, 
»nifh ts sufiicient to make it appear to any 
a foitf-ry, is indorsed by Mr. KiunorRley. 
That u ill appear a clear evidence of the forgery 
^jf by Mr. Kinnersley. No man in hi* 
KB^s would do this. If a for<;oi| note for 
IjSoO/. waii made in ihp name of any person, 
nd appeared in all these rircurnstaiicrs of a 
pkin P>rgery, no man in his senses, and desit>'n- 
iBKioact a fiair part, would make an iu'lorsc- 
•mt tbetvtu. No other purpr»se. thfrrefore, 
Kcms aimed at in the indorsitu; but to ^vi the 
Metifoiog. If such a note wns olftTcd to a 
fur sad bonett uian to indorse would he not 
■inkat it ? Would he evor have indorsed it ? 



Therefore, this indorsement is a strong evidenes 
against him. The use made of this note, thui 
forged and indorsed, was this : it being in th« 
hands of Mr. Hales, Mr. Hales wanting a sum 
of money applied to one Mr. Thrup, dckiring 
him to lend nim bis note of 400/. Upon his 
doing tliis with difficulty, Mr. Hales deposited 
this note as a security tor his money, and here* 
upon this note continued in the bands of Mr. 
Thnip. Gentlemen, upon the discovery that 
was made of another forgery, whereupon Mr. 
Hales was apprehended, there was a suspicion : 
hereupon Mr. Edwards, being informed that 
this note was in the hands of Mr. Thrup, en- 
quired of him about it. The thing upon this 
appeared, and Mr.' Kinnersley thereupon was 
apprehended and carried before sir Richard 
Hopkins. At first he seemed willing to make 
ft discovery : afterward he went back, and de- 
nied ^I thmk) what he seemed before to have 
owned: that will be proved to you. I think 
that this will appear plainly to have been ft for^ 
gery, and to have been done by Mr. Hales and 
Mr. Kinnersley. 

Serj. Whitaker, My lord, we will go- on in 
the same method as before, by calling two or 
three witnesses. 

Thomas Maddox and Anne Clarke were 
called, sworn, and deposed as before. — As ftlss 
Mr. Booth. Vide the preceding Cases. 

Mr. Charlton Thrup sworn. 

Att, Gen, Look, Sir, on that note, and ttH 
us when you first saw it before. 

Thrup. On May the 22nd. 

Att, Gen, Who brought it to you? 

Thrup, Mr. Hales. 

Att, Gen. What did he say to you f 

Thrup. He brought it to me, and desired 
me that 1 would give him on it three notes of 
500/. I refused him at first, alleging that it 
wns not for my credit. At length 1 put into his 
hand a pnunissory note for 400^ payable 
within six months. 

Att. Gen, Look on that note and see whether 
it now is in the same case that it then was. 
V/ns the indorsement then upon it ? 

Thrup. 1 cannot say : for 1 took no notice of 
the indorsement till I delivered it to Mr. Booth 
at the request of Mr. Edwards. 

Alt. Gt'H. fn whose custody was it till you 
delivereil it to Mr. Booth ? 

Thrup. In mine. Sir. 

Aff. Gin. Did yuu make any alteration in 
it.** — Thrvp. No, Sir. 

Att. Gen, And \^hen you gave it to Mr. 
Booth y(»u mirided the indorsement, did you 
not? — Thrup. Yes, Sir. 

Att. Gtn. How came you not to mind it 
b**fore? What security was Mr. Edwards's 
note if it had uot been uidorseil ? . 

Thrup. I had such an opinion of Mr. Ha^es 
that 1 suspected uoiliiu:^, and therefore (rave 
him the note ; I did not think he would have 
been guilty 'tf so vile an action. 

Att. Gtn. \\\\v\\ wui it that you delivered 
this note to Mr. B'joih ^ 




fvr a Mudcmcamr. 

ka«a(benlliat were mule, llmtthe 

M wtiuea nith n secretary e, hut ibe e 

'•■^ witicti plainly mpri* 1u answer lo 

>ad, anJ aliaw that iLal is 

H(, Tfenot Bird tvato, 
iluCtn. Sir. wbose lianii i> lliaC? 
to^lir. Kinaenley. »ir, owncil that to Le 

JcAm. W«i it (hpirril by y<ia In Mr. 
fapiliy at tbal lime wbcD he on ned il i" 
■aw , f ci. Sir. 

laarttrf. And did I own it. Sr ? 

Il 6m. Why, you owned il in court. 

, I b*^ your pardon, Sir ; t did 
d ll.aL 

(i>ic thai unte Id the Jury lu 
I wilb Uie oUiVr uote tkat it now 

J, Witlnktr. Blr. Uneoln. those rece>|ili 
•«diyM pnHlured, <lld Mr. Kinnrraley ac- 
lalhr KM* llinn .' 
Iimh. f MW him write tlietn all. 
tmiWkHaktr. Sbrwtliem lo the jury. 
Ii^« Bityaeldi. Oenltumen ol'lb« jury, in 
tami yaw will Sad anine receipia wrote- by 
Mt. liwmity, which Mr. Lincoln sHcars 
nhlanrf; tW he luw him write then) all. 
Jti. Otm. TIm tiCKt wiloess that we will 




iitMlui|i«ariTi([norThoinas Brooks, who 

WMttMlM, 

Hir Rjdtard Uopkutt ttvoTti. 
M. Gtn. 8ir lliohard, we muat trouble 

Cia p>e an account upon nhal accounl 
KaMialcy wta brunglit before you, and 

lb a- Jln-Inoi. Itc waabrnnghl before mc 
«^in...,i.,i,., iiu« of l.^iOOf. and tills note. 
V- lien he WIS before yon, was 
.- ular nenlioii made of this nole 

'II. It WM giren to me to 
\: \Mvn\ty about il. 
- f Ridtard, can you recdieci 
lUe note r 
" I M. I made nn mark upon it: 

t IwOeve ibat lbi> was" 
i Otn. Wat it abewed 
f 

L B^kiM. Tliii 

" latKise Sir. Kinoerslpy oiioo. I 

, ifit, and il seeninl lu me to be a 

Bafbrv I could aay any lliinj^ lo Mr. 

■ ■ leMilford there. 

what I 

' Hold, 8ir(«iid be), 

■or hand.' I titnuglit 

> |tinice ol peace. I 

1 . 1* this your hand 

1 I the niher Tiof in 

I'Telbre lo reoolkct 

iliat ibry «wi\ied 




A. D. 1729. 

Mr. Strange. 1 Ibink lie Offoed the one In be 
Ilia hanil-wrilin^, and tbe olher not. I aik. 
Whether ihat wliieb he did own, Has owned 
before that Mr. Hitford tntemipled him, or 
after f 

mr R. Jlopkint. It waa before. Upon tlial 
Mr. Mitfonl interrupted him. 

Serj. Wkitaker. Upon the quesltnn, when 
enquiry wa» made whether he had bad any 
dcaliii^B will) Mr. Ednarils, what did be aay T 

Sir R. Hvpkini. Both Mr. Edwarda and 1 
asked him, whether he erer had had any dcal- 
ioffB nilh Mr. EdwiinU? To which lie re- 
plied No, be nerer had hail any, nor erer toth« 
best of bia knowledge had seen him before. 1 
llirn asked him bow he came l« draw ibat 
n«te payable to Mr. Edwarda, when there 
neitr liad been any dealings between him and 
Mr. EdivnntH f He answered, That be did it 
at the re<)ii(-Kl of Mr. Halea, to whom be wa*. 
indebted in that aum, and more. 

Judge tUynoliii. The lirat question I sup- 
pose was (i^iierul, whether there had been any 
dealings between lliena i* Aflerwaida, when Ihe 
noles iveie tliewn liim, he owned ibe one, 
and denied the other. Was it not ao f 

Sir R. Ihpkmt. Yes, my lord. 

Alt. Gctt. The noxt wilBcas that we shall 
call is Thomas Bab, to shew lliai there was a 



Thomns Bai swdid. and deposed as before. 

KinneriU<,. Sir. di.) ire ever call for pen, 
ink and paprr ? — iiab. No, Sir, ncter. 
Mr. Brooki aworn, depoaed an befora. 

Kinnerilfy. There could not be much dnn* 
at night without a candle- 

Broah. No, Sir ; but you had been there a 
considerable time belbre. 

Mr. Wright Bwom. 

Serj. WIdiiiker. Were you present, Sir, at 
tile eiiRiiuatian of Mr. Kinnersley before air 
Richard Hopkins?— ll'rifAt. Yea.Sir. 

Serj. Wh'lakir. When Mr. Edwards asked 
him, whelber there had been any dealings be- 
tween them, what did he rc|ily T 

Wright. He replied, that Uiere nerer had 
been any dealing between them, and that h« 
nerer bod WFn hiiu till that time. 

Serj. Wfiilaker. Did you obaeive any inter- 
ruplion? 

Wright. Mr. Kionertley was aayioi;, I will 
tell you all if yon will give me trate. Hf. 
Milfard laid his hand opon him and said, Hold 
your lonffue, be careful what vou say. 

Serj. WAilakfr. I ask whellier be'bad there 
related any thing aa lo the note now Id i)Ueninii 
before the Interruption ? 

Wr^ighl. He had declared that that nnta 

Kintitritey. I beg leave In speak, my lord. 
Both sir Rii-hard Ifopkins ami Ihatgentlemaa 
bnte made a mialnke. Mr. Kdwnrd* asked 
me. How olt have von viaited Mr. Hat««i» 



875] 



S GEORGE 11. Trial of Wm. Hates and T. KinnenUyf [871 



New|(ftte ? Upon ibis it was ihat he said. Hold 
your pence. 

Serj. Wkitaker. Wbat was the question that 
was asked Mr. Rionersley, when you say that 
Mr. Miifbrd interposed ? ^ 

Wright, I cannot say what was the ques- 
tion that was asked immediately before. 

8erj. Whilaker, But you say, that it was 
af\er that Ive had denied this note ? 

Wright. Yes,8ir. 

KinatTM/ey. J would only ask, Sir, whether sir 
Richard Hopkins disired me to hold my tongue 
as well as Mr..MiU'ord? 

Judge Rejfnoldi. Did he hid Mr. Kinnersley 
make no discovery f — Wright, No, my lord. 

Kinnerglejjf. No, my lord: But he hade me 
take the gentleman's advice. 1 appeal to sir 
Richard. 

Sir Richard Hopkitu, The gentleman hath 
appealed to me. I take it that the question is, 
Whether I advised him to take the gentleman's 
advice P It would be very strange that I should 
reprove Mr. Mitford for misbehaviour, and 
vet should at the same time advise you to take 
nis advice. 

Wright, Sir Richard asked Mr. Bird, whe- 
ther Mr. Kinnersley owned that he knew of the 
note being indorsed that was in his hands ? 
He said that he did. Then he was asked when 
and how he knew this ? This was before Mr. 
Mitford interposed. 

Judge Reynolds. You have appealed to sir 
Richard Hopkins, that he advised you to take 
the gentleman's advice. Sir Richard denies 
this. 

Kinnersley, But he cannot deny that he 
said, Take your friend's advice« 

Mr. John March sworn. 

Serj. Whitaker. Were you present, Sir, at the 
•xaminatioii of Mr. Kinnersley before sir 
Richard Hopkins ? — March. Yes, Sir. 

Serj. Whilaker, Pray, will you give us an 
account of all that past then* at*^that time. 

March. My lord, I was nttending upon sir 
Richard Hopkins as his clerk, when Mr. Kin- 
nersley was broufifht betoie him with relalion 
to these notes. \Vlien th«) tixst nou? was pro- 
duce^l, he was a^iked, whether that note was his 
hand- writing or mil ? To n hich he answered, 
That it was. When that was gone ilii*ough, 
the second note was produced, being a pro- 
missory note made in the niiinc of i^fr. Ed- 
wards payable to Mr. Kirinerslt-v. When that 
note in the name of Mr. Kdwanis was produced. 
we perceived on the back nf it the naun* of 
Mr. Kinneniley wrote. Mr. Kinnersley having 
denied this note, sir Richard, upon comparing 
the name on the liack of tnis note, with the 
Other note which he bad owned to be his own 
hand-writii?!^, said to him, *^ 1 would have you, 
Wr, consider very well whether you did not 
write that too: tor it is Tery like that wliich 
jrou have owned." Upon that Mr. Alittbrd 
interposed. 

Heru Wkitmktr. What was it thai Mr. Mit- 
fiinlaMiayf 



March. Mr. Mitford apoD that said, <• Hr. 
Kinnersley, 1 woubl not hare you anawrr that 
question ;" or to that purpose. 

Att. Gen, Did sir Richard Hopkins tdfin 
him to take his friend's advice ? 

March. No, Sir. 

Alt, Gen. Did he reprove Blir. Mitlord fit 
interjposing ? 

March. Yes, Sir. He desired him to h 
quiet ; and told him that he would atk whil» 
ever questions were desired, but desired thatli 
would not interrupt. ' 

Att. Gen. Was his denying of the Dtli !•> 
fore or after the interruption ? 

March. He had first intermpted during lit 
examination on the Grst note, and he nfteriiMl 
interposed during that on the second note. 

Alt. Gen. Well. But I ask you u toAi 
second interruption, whether it was bcfim • 
after his denying his hand ? 

March. It was after. 

Serj. Eyre. You were saj^ing, Sh*, tbttnr 
Richard bttde him recollect himself, and d** 
aider well whether this was not his hand tm^ 
for that it was very like that note which IM 
had owned to be his own hand-writing. Had wtt 
Mr. Kinnersley before that said, that be M 
not sign that note ? — March. Yes, Sir. 

Att, Gm. We rest it here, my lovi, irf 
leave the considemtion hereof to the jury. 

Mr. Mather. 1 would ask, wbcihcr Mr. 
Mitford's advice was not that he shoeUl Itf 
speak too fast ? 

March. No, Sir; it was that he shonii at 
answer to that qiicstiun. 

Kinnersley. They contradict one nnote) 
and Mr. Bird will swear ahy thing. 

3 xk^QG Reynolds. You may prove that ts^ 
his character if you can ; but without that yli 
oun:ht not to aver it. 

Bird. It is well known, my lord, wbat Of 
character is. 1 have persons of good OfsA 
that have known me ihLse26 years: I but 
never fu hi tied my word. 

Mr. L(u'y, My lord, 1 have nothing msteriiL 
in ujy instructions ; and therefore 1 shall not 
trouble your lordship. 

^i:\'y'Eyre. My lord, 1 am counsel for Mr. 
Kinnfrstey. I admit that they have profsi 
tiiat there wos an intimacy between them. It 
is detrimental to niy client that there was rack 
an actjuaintance when the one was parishioMr 
formerly to the other, and that this acquaial^ 
ancc was ki^pt up to the last : but it doth Ml 
follow that they arc to be coniiiilered as onsi 
Jf Mr. Hales be never so gniUy, it doth nSl 
appear that Mr. Kinnersley is guilty. AsM 
this indictment, the charge is forginfi^ a note h 
the name of Mr. Kd wards, and indorsing thi 
same. It is admitted that Mr. Kinnersley kafi 
no acquaiiitance with Mr. Edwards : but ei 
the otlier hand it is pretty pUin, by Ike Cfi^ 
dence that hath been given, that there 
acquaintance between Mr. Edwards and 
Hales. They were near neighbonrs: 
Edwards hath indulged him with innknfti 
several years. Mr.Uakiisaiiiaaimisr 



Jbr a Misdemeanor. 

Rr BUoy jnn, bath bad a commia- 
aakniptcj awarded ai^inst him : It ia 
ml lor attcb a perann to deal rather in 
pmoD'a name than in hia own ; if 
there be an intimacy between Mr. 
i Mr. Edwards, Mr. Hates should ap- 
r. JSdwarda, and he upon his request 
ife bim such a note, I do not wonder 
fentleaian of character should indorse 
ile ainftied b^ a person of such figure. 
^ MCIB very unnatural, that afler their 
■iDtance a note pa3'able to Mr. Kin- 
w trust for Mr. Hales should be in- 
' Mr. Kinnersley : This may be sup- 
ecate, if actually he did indorse the 
do not see why he may not be sup- 
easily imposed upon as the other gen - 
iz. Mr. Thrup. Ji is not so plain a 
(that Mr. Thrup, who is a gentleman 
My could discern it. Why must we 
hen that Mr. Kinnersley roust dii- 
If then Mr. Hales is iruilty of the 
it doth not follow that Mr. Kinnersley 
W. As to the other point, it is no 
bat there should be the name of Mr. 
ay oo the back of the note : Any that 
rge a note will not scruple to forge 
MBCOt. It is as likely as possible, and 
that would forge a note in Mr. £d- 
mme for such a sum, may be as easi- 
aed to forge an indorsen^nt on this 
low have tliey proved that it was in- 
f Mr. Kinnersley ? Two or three gen* 
ave been produced as witnesses, that 
n his hand several times, and from 
itade of the letters they believe it to be 
: But there is such evidence to be 
f given of one man's writing like ano- 
It a similitude of hands is not to be 
I at. It is not to be wondered at that 
rould be guilty of forginjif the whole 
aid indorse it : VVhtMher there is any 
tin the hand between the writin(;s that 
Q produced and this note and indorse- 
jiit be left to the jury. 
lieynoldf. Have vou any witnesses? 
rs/ry. I beg a word, my lurd. 
Reynolds, Not till we have heard the 
at the counsel say. 

lather. I take notice, my lord, that 
tth been a variance among the wit- 
I to what past at bis examination he- 
Richard Hopkins. The only caution 
I given him was, that he should not be 
ID bia answers, as your lordship hath 
e) thought him very rash in his con- 
r. We shall only call a witness as to 

Rev. Mr. John Haya sworn. 
Imtker, Mr. Hayes, please to give my 
the jury an account what passed as to 
of 1,6M)/. 

• When this note was produced before 
ifd Hopfcios, and shewe<l to Mr. Kin- 
spannewing him the name on the 
the Mtc^ he abaolutely denied it to be 



A.D. 1729, 



[278 



Mr. Mather, Did you hear Mr. Mltford in- 
terrupt ? 

Hayes, I remember that there was a dispute 
between sir Richard Hopkins and Mr. Miifurd. 
There were minutes taken of Mr. Bird*s exa- 
mination : u|>on the reading these minutes, Mr. 
Mitford apprehended them not to be riu^htly 
taken accordiusr to the evidence that was given. 
Upon this Mr. Bird was re-examined, and then 
there was another question proposed concern- 
ing Mr. Kinnersley's going to Newgate to 
visit Mr. Hales. 'J^hen Mr. Mitford again in- 
terposed. 

Mr. Mather, Was that the reason of the 
interruption ? 

Hayet. Yes, Sir, I believe it was. 

Mr. Mather, Was there some other part io 
which he had also interposed ? 

Hayes, Yea, Sir. 

Mr. Ward sworn. 

Mr. Mather. Sir, were yon present at the 
examination of Mr. Kinneraley before sir Rich- 
ard Hopkins? — Ward, Yes, Sir. 

Mr. Mather, Give us an account of the in- 
terruption by Mr. Mitford. 

Ward, Mr. Kinnersley was examined as to 
the note of 1,260/. : Mr. Kinnersley being 
examined aa to that, there happenc^d some 
words t9 pass between bim and Mr. Bird: 
after some hesitation and dispute, he having 
acknowledged that note, it was put down in the 
minutes. After that he was examined as to 
this note of 1,650/. : Upon his denying that it . 
was his hand, Mr. Kinnersley was askeii some 
question by sir Richard Hopkins concerning 
somewhat that he had formerly said ; where 
upon he desired to be exantined in the c(mrt 
of aldermen. Mr. Mittord hereupon desired 
him not to desire this. 

Mr. Mather, My lord, the reason that we 
bring this witness is to shew, that he had con- 
fessed all that he could at that time, and there 
was no resison therefore for Mr. Mitford to inter- 
pose for the preventing Mr. Kiunersley^s mak- 
ing a discovery. 

Kinnersley, My lord, when tliis note was 
shelved me before sir Richard H(»pkins, it was 
the first time tliat I ever saw it : I therefore 
denied it to be my hand ; hut l»v looking upon 
it more closely, 1 own ihut it is like my hrnd. 
Thoui^h nonv can oblige me to s:iy any thing, 
I would he ccntent to he examined ; and thf>re- 
fore have, though not regarded, stdemnly 
averred ihat 1 was not privy to his getting of 
that note or money. As to the ottier note, 1 
owed him at that time the 1,260/. ; I gave him 
that note for it, and would not uilh tha* 8(deiri« 
nity say that it is not mine. He hath got it 
sonte other way indorsed: Jiut as to ttiis note 
it is not mv hand. Had !\Ir. Hales briMit;ht 
Mr. £dwards*H n(»te to me, and desirinl me to 
indorse it; though 1 own that J tinnk that it 
hath the marks of forgery, yet if Mr. Thrup 
and others were imposed upon, why mi«r|it not 
1 ? Why should I suspiict him more than 
others f I own that I bad a great contidei;c« inr 



S79] 



5 GEORGE II. Trial of Wm. Hales and T. Kinnersley, 



liim. SuppouD^ tbis, will yon ooDdemn me 
for an unjust thing ? I take God to witneM, 
that I nefer set my hand to that note, nor nefer 
took any money. I beg pardon, I will say one 
word more : the ipentleman hath taken notice 
rightly that I have spoken rashly ; it if an op- 
pression, and the wise man saith, that " Op- 
pression will make a wise man mad," which b 
worse than rash. 

Att, Gen, My lord, be bath intimated that 
tliis is an unjust and oppressive prosecution : I 
submit it. Proper eTidenoe hath been given, 
and be hath replied to it by his counsel. The 
counsel suppose, that it' the whole note was Mr. 
Hales's hand-writinfift it was Tery likely that 
lie would not scrupfe the indorsement. Mr. 
Kinnersley himself seems to adofit, that for 
aught he knows he might have indorsed snch 
a note; but the turn that he gives it is this: 
If such a note was wrote in the name of Mr. 
Edwards payable to him, he might indorse it, 
being brought by a creditable and nonest person. 
If a note was made payable to him by a gentle- 
roan of such figure and character, and so 
brought to him, be thinks that he might indorse 
it, and would ao have done : But it is impos- 
aible that it could be fairly done ; there must be 
something fraudulent in it. The evidence on 
the side of the king shews, that there must 
have been a conspiracy between these two per- 
ions to defraud several persons : As the other 
note was, without any colour for it, made pay- 
able to Mr. Edwards, his name being indorsed 
upon it, he beibg a person of ability to credit 
the note ; So this second, on the other hand, 
without any foundation also, because no colour 
of dealings between them, is made in the name 
of Mr. Edwards, payable to Mr. Kinnersley, 
and Mr. Kinnei-slev s name indorsed. Why 
sbuuld Mr. KiunerBley's name be put to it, but 
only to give a currency to this note P When a 
note is made payabli^ to any person, it cannot 
be negociated by any other without his hand 
being put to it : His hand therefore was not so 
much to give a credit to the note, he being a 
man of no substance, as to give a currency to 
the note, it being in hb name. When that 
appears to you, it is (I think) sufficient to con- 
«moe yourjud(;nients tliat Mr. Kinnersley is a 

gartncr in this forgery, otherwise be would not 
ave indorsed this note in these circnmstances. 
Serj. Whitakcr. My lunls, it is very extra- 
ordinary for a person to pretend such a note 
belonging to him, that never had had any deal- 
ings with Mr. Eiiwards. What proof hath he 
given that he did not indorse it P What colour 
IS there to say that this is a rash prosecution ? 
Kinnersley, BIy lord, 1 beg a word. I say 
not that it is rash, as to the whole prosecution : 
but I never was privy to any wickedness in 
this note, nor in anv other: If I had, I would 
never have appeare<f here in my ^wn. My cha- 
racter ought not to exempt me if 1 am guilty ; 
1 ought to abstain from all appearance oif evil : 
Wlm I have forfeited that character, 1 desire 
to live no longer among mankind. I asked 
Mr. Uaki M what acoaimt I wu mmtfntfmA 



whether there were any note of mine 
said. Yes ; there was a note of 1,650/. p^ 
by Mr. Edwards. Is it (said 1) a true 
Is it wrote by Mr. Edwards P He aha 
head and said. Just as true as the oth 
asked him whether it was indorsed P To 
he replied, Yes< Had I known, my lor 
the note was indorsed, I need not nave 
Mr. Hales. He b ready to do me j 
though he must thereby take it upon hi 
Your lordship knows that I have no s^l 
racter in Suffolk. 

Judge Reynoldi. We shall not neec 
Kinnersley, to go to Suffolk for youi 
racter.* 

Judge Reynolds. Gentlemen of the 
William Hales, late of London, goldsrail 
Thomas Kinnersley, clerk, atami indict 
forging a note under the hand of Mr. £ 
Edwards, for 1,650/. payable within 
months to Thomas Kinnersley, or ordei 
the date thereof, for value received : At 
other part of the indictment charge th 
with publishing the same. To this indn 
they have pletuied NotGnilty: The qi 
you are now to determine. Gentleiiie 
foundation of this which bath been insii 
by the counsel on the aide of the prose 
is, tliat these gentlemen, or rather the 
them, Mr. Hales, having an acquaintanc 
Mr. Edwards, and being indulged by hi 
liberty of applying to him for franks, the 
made a wrong use of this, and by con« 

* In Trinity term 5 Geo. there was 
fonnation against this Mr. Kinnersley a 
Moore, as being evil-disposed persons, ii 
to extort money from my lord Sunder laj 
conspire together to charge my lord w: 
deavouringto commit sodomy with th 
Moore; and that in execution of tbi 
spiracy, they did, in the presence and h 
of several persons, falsely and malicioui 
cuse my lord, that he '* conatus fnit r\ 
neream habere*' with the defendant Moa 
so to commit sodomy. Kinnersley oi 
peared, aud pleads to iasue, and is found | 
and several exceptions were taken in ai 
iudgment, see Strangers Reports, vol. 1, 
but the Court over- ruled them all. Whe 
judgment was given for the king, and 
wards the Court proceeded to sentenc 
told the defendant Kinnersley, nothing ! 
being a clergyman protected him from 
poral punishment ; they fined him 50* 
year's imprisonment, and to God surei 
his good behaviour for seven years. In 
term, 5 Geo. Moore Wax convicted an 
tenced to stand in the pillory, suffer a 
imprisonment, and to nnd sureties lor 
years. And this term, Kinnersley, o 
davits of his being indisposed, moved the 
that lie might be admitted to the bene6t 
rules. Sed per Curiam, we never do it tor 
execution, which diflSera from the case of 
SOD oommittad for hisb treason, who bav 
bailed 00 account of iUoess. lb. I96.1bni 



' a M'ademtanor. 
« if ttiE \eatn tf ih» word ■ fTree' ioin 
•In tlx^." uiil hy trtiliog aome flilier worJs, 
tejr k>Tc DOW iDrmril il mlo a nrgociable note 
fir lb* ntm «f l.USU/. jiiynble williiti six 
■Mih* M Mr. KliuierKle;, or hin order; And 
Aw Mr. KiBDcntkf , tn ^rs a circiiUtion tti 
feaaic, and make il ntfgociable, baih, la cam ' 
tMBWB wtib Mr. U>Ifb, iDdaneil bis nsme- 
M*. Uaar^* \» mpontitile lo any body lo 
«tMi 4W wote » trinKferrtil oTtr. Genlle- 
■■.IKMakraul ihlstoWtliecBSe, they tiave 
fttiMbsrouml In «liew ihal Mr. Hale*, fat 
mmi liBF, on Mfml preteoces, prorared a 
■ahir *f aaptrscTiptiftiiB to be writleo for 
taht l>r !llr. Edwania, who is a niember of 
fHfaMst, and particularly (ome auppnciip- 
tfiMiniMcli circuroslaucea as were moat ac- 
■^iMadaWd lo aer*e a dmign of ihia oature. 
iii M tU* end they h»i>e produced Thomas 
■iMr, ■ Mrrtaul of Mr. Edwards's. He 
■ilh, Ihu Ur. lUIes, lirina near Mr. Ed- 
■«4a in Dulcc-sireei, in WeKtminater, haili 
mtntA than applied lo him for frank Fo?er8 to 
«ari MWK into the cuuntry: thai Mr. Ed- 
««<i« kaitt PITCH iiim seTeial for thai purpose, 
htf ft n Si ally wrote the whole sujiertcriptioii 
Vi^BiC iHirmaiit tu the directions that were 
piM him: that In July Um there came a 
■MMlsf fVaak*. SIX of them, wlimruftive have 
M fnduced, lo be franbed, but without any 
Acoan In irboBi to vuperacribe them. Mr. 
IIbbi4« *«i dein«d lo frank tbem wilhont 
mn MtpKncrijitiori : Mr. Edwards refuseil lo 
nifc iMoi. Hiiinis directed to wbum lo aupn- 
■ntellMm: Thu« Iheaecoters, upon thai, 
WMaal dooeal ibal lime. But ihea lo shew 
Ml «lwl pMt aflerwards llpnn occnslnu of 
iHhbitks >cul la he frinked, Anoe Clarke, 
a Mrtanl alau lu Mr. Edwards was callad. 
ikMh, Ihal sometime aAerlbii, Mr. Hales's 
^iMH cam* a^in ov«r lu Mr. Edwards's 
blow, and told her that Mr. EdiranU having 
i<— d to frank his master'^ cuiers williout 
Wfamptiona, \\* had bronghl from his master 
■ faftrwf ihtectiuns what aupvncriplions he 
4Mr«d Mr. Bilwards to ]iut lo tbem. Tlial 
■tpst a( dirrctions hath been produced, and 
Llh hern ■*>«!■ hy Mr. tloolh to be Mr. 
tLt^mma lnDd-wriiiii|r. Tbey trcre very 
Ann dvidfOna . 

T«o In Mr. Lt'Tell, of HuDtiaston. 

TwawJohu I'mli, eMi.At Bristol. 

T»a Iwiftffeti Mitford, owj, I^eler, 
iad Ibey miubl inlvr, lltit as ihese superscrin- 
tma wrra icry abort, and W won' ) not tsRC 
^■ucli rfMim, a Tactnl upace would liavcheen 
Maad-JEDI tn trritc any tiling of this nniure, 
1\M ■■ ri>« maun of Ibeir pradneJne an accounl 
'*'* ~ icrioii, which dolh nut immtidiately 

uae.bntnnlv at they areinclinahfe 
tt (ome such IVank may hsTebcm 
Wfc «*e at lo anrh «n end as tbrsr seem lo 
iMahnrndengnnl for. And thi-n,loBhewynu 
fciaa which tlivy m^de herrof, tbc note [i 




"Iprflmiaelu pay in Mr. Thomas Kiiuers. 
ley, or his order, withio six monihg at\er data, 
ibe sum of siiteeo hundred and fifty pounda 
lor ibe tbIub recalled, 

" Marck'-iO, 17S8. Sahdel EDWaaw." 
and on Ibe bark il is indot«ed with the oanie, 
Thomas Kinnersley. Gentlemen, they have 
insisted upon it ihal Ihe neie itsvlf carries the 
evident marks of forgery upon il. They say 
ihnt this it so plainly derived from Ibe I'lanK 
cover of a letter, thai Ibe word ' (Tree' Is not 
wholly covered, but thul still some of il ap- 
pean ; thai llie stile is oniisDEd ' for llie ralue 
received.' ' The' in a lar^je hand, and then af- 
terwards ■ value received,' the u of a round 
hand, wliereas all Ihe other ee me of a ijuile 
diHerent figure, in a secretary band. Olher 
obsertaliont they have also made, which you, 
thsi have rieweo the note, can easily jud^e of. 



for that purpnie they have produced Mr. Charl- 
ton Tbrup. He sailli, that on May 92d ta>tthit 
defendant, Mr. Hates, brciii{;hl this note to him, 
deiirio^ bim to tend him three boul. notes npoit 
il; thai he, not caring; tn have bis credit en- 
gaged lo lucb a decree, refused to do il; bnt 
upon bis imporlUDity, did at last consent to 
give bim a promissory note of 400/. upon ihe 
security of Ibis note, whieh Mr. Hales there- 
upon then de|>osiled in bit hands ; thnt il waa 
a note for 1,850/. aipied by Mi. Edxards, 
payable to Kinnersley, and indorsed. Ha 
Bsith, indt'ed, that be did not Iticn observe the 
indortemeaL Seeing this noie signed with 
Mr. Edwards's hand, and knowing him to be a 
mtn of ffr«ai sufficiency, he was not to atien- 
live lo tlte other. He sailh, that be kept lliia 
note in his band till alter that Mr. Hales waa 
taken up, aitd then he delivered it hy Iha dire«> 
lion of Mr. Edwards loMr. Boolh; ihalbefora 
It vent out of bis hands, he observed the in- 
dorsement. Hesweui'salgo, thalil received no 
alteration in the mtermedl ale space between ita 
coming into his hands and its going out : it 
most be therefore iudorsed before. He sailb, 
that at to his own note, he knnweth not what is 
cume of it, but believes I but il is in the hands of 
Mr. Maddoi, at the Bank. To shew that this 
is a forircd nole they bafe called Mr. Spicer, 
who halh been above twenty years conoerned 
for Mr. Edwards ; ahout ten ur twelve as his 
clerk. He sailb Ihat the name it Mr. Ed- 
wards's, and that the ff is also liis ; that il ia 
bis roaster's conttani custom, when be franha 
a letter, to write Ibe word ' fTree.'and ual * frank' 
over his name, in ihe manner wherein ihis 
orig:inally stood, and tbul always with a ff. He 
aaitb, Ihat he likewise thinks that the r is hit 
master'* hand-writing, hut that the o is since 
crowdeil in bclween Ihose lettert. He thinks 
that there are plain footstrtis, which ahew Ihat 
the first of ibe Iwo ce wiilch joined lo form 
the woid' ITree,' hath been made use of lofi>rui 
the hrvt ^rl of the heuit of lliey, and the other 
stroke bein^dratrD between tlAf and the other 



983] 



S GEORGE II. Trial of Wm. Hales and T* KinnerHey^ [281 



tf j it forms the word^'^ but then it doth not stand 
at usual ofer the y. And then be observes, 
that he the rather believes this to be his mas- 
ter's f, for that he always writes such an baud, 
and all the rest here are in quite another hand. 
And he saith, that he believes, that beioff ac- 
quainted with his master's aflfairs, he should 
have known of it, if that there had been any 
such transaction of his master's, and that this 
note too is of a quite different form from any 
that his master ever delivered, and in a manner 
therein his master doth not usually transact 
his affairs : for that, as he is a man of fi^reat 
credit, he never knew him give a note for time ; 
and in the next place he is so very cautious that 
he never knew him give a note but that he wrote 
the whole body of it with his own hand, whereas 
the body of this note is not his own hand, and 
therefore contrary to the method that he usually 
observes. Thus far the evidence is product, 
in order to charge Mr. Hales, one of the de- 
fendants : but tlien in order to prove Mr. Kin- 
nersley a partner in this transaction, they have 
afterwards observed upon the indorsement that 
this note beinnjr made payable to Mr. Kinuersle}', 
it could be of no use tilliudorsed by him to ^ive 
it a curreiicv. They have shewed the hand 
upon the hack, and in order to prove his name 
wrote there to be his hand, as in cases of this 
nature noihin<^ but an observation of the simili- 
tude of hands can be expected, they have called 
on those that have seen his hand, to give their 
o|)inion thereof. The first man expresseth 
himself with a great deal of caution, seeming to 
apprehend ut hrst that he was called to swear 

{)ositIvely that it was his liand : he saith, that 
le hath seen him write several times, particu- 
larly at least three or four times the last year ; 
that tills is so like that he verily Mieves this to 
be hi;! hand, and cannot alter Lis judgment as 
ixi it. To the same purpose they have also 
produced another person, one Mr. John Lin- 
coln: he saith, that he hath seen him urite 
several times, and put his name to receipts in a 
book : and that he cannot believe but that this 
is his hand- writing. Some of you having de- 
sired to see and compare with this note the other 
note which was formerly proved, it hath been 
again proved ; and as the person aforemention- 
ed jiroduced several receipts which he saw him 
write, you have had them also to look upon : 
which how far it will help you in forming a 
judgment you are to judge. Further, they 
say, that Mr. Kinnersley was a stranger to, and 
had no transactions with Mr. Edwards. They 
have called several persons that were present at 
the examination of Mr. Kinnersley before sir 
Richard Hopkins, as well as sir Richard hini- 
lelf, who all say that Mr. Kinnersley himself 
owned this, and wasgoin^ to say something 
further, bad he not l)een mterrupted by Mr. 
Mitford. 8ir Richard Hopkins hath been pro- 
duced. He saith, that in the latter end of Sep- 
tember last, Mr. Kinnersley was brought before 
him, charge<i with two notes, tiz. one of 1,260/. 
and this note of 1,650/. ; that they entered into 
the eTtminatioQ of the fint notei which he 



I owned very frankly to be his note, written with 
his own hand ; that they then entered upoo the 
other note, which he verily believes to be tb# 
same that bath been here produced ; that BIr. 
Kinnersley having denied this indoraemeDt to 
be his hand, he desired him to recollect whether 
this indorsement was not his hand too, for that 
he observed a very great likeness of the hand 
between that and the note which he had owned 
to be his hand- writing, and delivered the note ID 
the defendant Kinnersley to look u|Km ; that 
upon this Mr. Mitford came up to him, and 
said, ' Answer nothing : this is not your band- 
writing.' He saith, that upon thii Mr. 
Kinnersley said the same thing, that this ww 
not his hand- writing. He saith, tiiat be asM 
him, w hether he had had any dealings with 
Mr. Edwards P That he replied that he had not, 
and that till this time he was an utter stranfff 
to his person. He saith, that Mr. Mitford and 
he baa some high words upon this occasn^ 
he reproving him for interposing when he ap» 
prehended that a further discovery might have 
been made. They next endeavour to shevi 
that there was a correspondence carried on in 
a private manner between the two defendaniL 
In order to shew this, they have pitKlueed 
several persons at whose housesihey have mrt: 
one of them is Thomas Bab ; he saith that he 
keeps Peel's coffee • house, in Fle«*t-street ; thai 
the latter end of Inst summer Mr. Ualee very 
frequently came thither, and would sometimes 
be there for an hour or two ; that he oAsn 
asked whether the minister l\ad been thereto 
ask for him, not asking fur Mr. Kinnersley by 
name, they knowing whom he meant, haviDg 
often seen them there together ; that when Mr. 
Kinnersley came in, they useil to retire into a 
private room, and stay there together for some 
time; that one time Mr. Hales observed Mr. 
Kinnersley t^oing down Fleet-street, went out 
and went after him ; that sometimes they went 
away together, sometimes asunder ; some- 
times one went out at the one door into Fleet- 
street, and the other at the other into the |>as* 
sage to Fetter- lane. He saith, that this their 
resort to his house was till about a mouth be- 
fore that Mr. Hales was taken up, and was 
then discontinued. Mr. Kinnersley asking 
him, whether ihey ever called for pen, ink and 
paper .^ To this he rejdiei, No. Of the same 
nature is the evidence oC Thomas Brooks ; be 
saith, that he keeps a coffee-house at Downingn 
street, in Westminster; that Mr. Kinnersley 
used to come to his house, send for a porter, 
and give him a note to Mr. Hales, who there- 
upon hath come thither to him, and they have 
gone together by themselves to the t'urtlier end 
of the room ; that this they did several times, 
and stayed together sometimes several houn. 
He saith, that once particularly they staid 
there till it was so dark that he usked his ser- 
vant why he had not carrieil the gentlemen • 
candle; who said that he had carried them one, 
but they refused it. Gentlemen, they havn 
then again had resort to the examinatk>n before 
sir Richard Hopkins: Ihey have, as tothii^. 



W] 



Jit a Misdemeanor. 



A. D. 1729. 



[286 



caned Mr. Wrigflit. He saith, that he was 
pfcacnt mt that eiamination; and that Mr. 
KkuMralcy, beiajg^ pressed to answer several 
^acstioiis pat to him, was in some emotion, and 
■■ii, I will tell you all, give me leave ; seeming^ 
Mms to take time to digest his thoughts : 
ihiitlicnoiie Mr. Blitfbrd came up to him, and 
Mttan bold his tongue, or he would do him- 
ariff SMe miachief, or words to that effect. 
Bt Mag examined as to some particulars 
te Mr. Kinneraley affirmed to have passed 
fttfamitr Richard Hopkins and Mr. Mitford, 
■tflkalnr Richard advised him to take his 
fiind^ advice, he denietb this, as doth also sir 
lakwd Hepkins himself, to whom Mr. Kin- 
BCfriej hereupon appealed. He saith, that he 
tUakstkat thn interruption waa afVer that hav- 
iagowMd the other note to be his hand -writing, 
ka kad deaie<l this indorsement to be his, 
air Richard thought it before, and de- 
to pvevent his answering him on that 
Tmt have also pNroduced Mr. March, 
liiBr I&chard Hopkins's clerk: he gives 
M oineb the same account. He saith, that 
Mr. KiBMrslejf having owned the other note, 
~ ~ ~ ~ this indorsement to be his hand, sir 
serving the likeness of the hand, ad- 
to recollect himself, and consider 
vkctber that indorsement was not liTs 
I ISO as well as the other note, for that the 
bwete very like; that Mr. Mitford upon 
■Her p o a cd, and said, * 1 would have you 
and not answer that question.' He 
MB that air Richard advised Mr. Kinnersley 
makehia friend'a advice ; but on the contrary 
■ilh, that sir Richard was a little warm and 
hfiikiufleil him for his iuterposiiiGf, as being 
as iaferrupliun of justice. Tlii*} is the evidence 
Ifcstteth been laid before you as to this note, 
kaft lo prove the forgery uV this note, and to 
Aew Ike nse that was made of it both by Mr. 
Hales and Mr. Kinnersley, who is charged 
with the indorsing this note in order to make it 
carreai. They are called upon to make their 
(Itfeoce: Mr. Hales stands mute, and saith 
BOCLiDg. The facts bear>ery hard upon him, 
kt being supposed to procure these franks : it 
Uioicd him therefore to give some account 
kav be came by this note. So as to that I ap- 
prehend that there is no litfficulty, Mr. Hales 
BiUag no defence. Bui the question is. How 
fu Mr. Kinneraley is proved to be concerned ? 
liis counsel have endeavoured to sol\en the 
fvirfenee, or make it not applicable to Mr. Kin- 
Doiley. They own that there was a fami- 
liarity between him and 3Ir. Hales: but then 
tktjr'aiy , that there was also a familiarity be- 
tween Mr. Hales and Mr. Edwards : they say 
teefore, that familiarity with Mr. Hales is not 
anrimina] tbinzf. In itself it is not: but the 
fSHAioa ia, whether a criiiiinal use hath Item 
■ide of it ? They suppose it to be a forged iu- 
IVBement; but say, that the same person that 
fcvgfd the DOtemight alsoforge the indorsement : 
■ad tbey aay, that suppokiog it to be Mr. Kin- 
Mslaj^ hand- writing, it may be well supposed 
^^"^^ "impowd upon. And they would 



also have it believed, that this is an usual thing 
for one person to indorse another's notes among 
common acquaintance. But how were they 
common acquaintance, when Mr. Kinnersley 
hath acknowledgeil that he had never seen Mr. 
Edwards in his life till afler tbisf They say^ 
that it may be the easier supposed that Mr. 
Kinnersley did thus give credit to this as a true 
note, and not take it to be a forgery, since Mr. 
Thrup, who is a man in business, was imposed 
u|M)n by it, and lent 400/. upon it. Tbey have 
called al^o aome evidence, not directly to con* 
trovert the fact, but to contradict some thii^ 
given in evidence, relating to the examination 
taken before sir Richard Hopkins. To tliia 
purpose they have called Mr. John-Hayes. He 
saith, that whether this indoraemeiit was bia 
writing was not the question proposed to Mr. 
Kinnersley, when Mr. Mitford interposed, he 
having before denied that ; but that there waa 
another question, that waa then proposed to 
him to answer ; whether and how often he had 
been to visit Mr. Hales in Newgate P And he 
saith, that as to that it was that Mr. Mitford 
interposed, and advised him not to anawer to 
that question. They have called also Mr. 
Ward, who was present at the same time, and 
gives you much the same account. He ap- 
prehends that there was a dispute about the 
minutes that were taken of what had passed, 
and that Mr. Kinnersley was in a passion, and 
desired to be examined in the court of aiders 
meu ; and that then Mr. Mitford interposed, 
and advised him not to desire this \ that the in- 
terruption was upon that extravagant offer of 
his, and that upon that possibly sir Richard 
might advise hira to take his Irieud's advice, 
that is, to be clear and not so rash in answer- 
ing the Questions put to him. Mr. Kinnersley 
himself hath laid Wore you what he thought 
proper. The witnesses that were called (you 
have doubtless observed) as to that examma- 
tion, both of them say, that he had denied it 
before the interposure. Mr. Kinnersley speaks 
himself and seems to say, that he doth not 
know but that it may be his hand, though how 
it came to be obtained he cannot well tell. In- 
deed it is an extraordinary thing how his name 
should be obtained on the back of a note signed 
by Mr. Edwards. Gentlemen, if any other 
particulars, material for their defence, have 
slipped me, you have heard them, and they 
oii'jrht to have their weight. The question is, 
Whether and how far he is a party in this 
transactiou ? If he be a party, thoujjh he doth 
but the one part, he is cquall v gudty : every 
man that takes part of these things is equally 
guilty of the whole, and stands undefended.* 
The note then must be taken for a forged note, 
and probably in the manner that they have 
shewn. The thing in question is. How far 
Mr. Kinnersley is concernc<l ? The name Kin- 
nersley, you see, is upon it : if his name bail 
not been upon it, the note had been of no avail ; 
for there bavin;; been no transactions between 

* Sou East^s PI, of the Cr. c. 19, § 59. 



SS7J 



3 GEORGE II. 



Trial of WiUiamHaUSf 



[888 



them, lie could not have deminiled the monej. 
Bat the maia bitsinem was to indorse it, that 
other peraonf that knew not but there vaig\xX 
have been such transactions between them, 
might credit it, and lend money uiion it. Whe- 
ther the proof that is given you that tliis is his 
hand, couoUmI with his own apprehension that 
it is very like his hand, will satisfy you of it, 

2 on must judge. If ^ou judge that it is his 
and, the next Question before you will be, 
bow far it couM oe put to a note of Mr. Ed- 
wards's? It is plain that there could be no 
foundation for it : if then you think it satis* 
fhctorily proved that bis hand was put on the 
bac^ ot this paper by hira, knowing it to be a 
note of such value, and there be no reason 
given you for it, you must look on him as a 
party ; but if you suppose it put to the back of 
Ibe note without his privity, in that view of the 
thing yoa must acquit him. 

Jury called over. 

Clerk. Are yon all agreed in your verdict F 

Jury. Agreed. 

Ckrk, Who shall speak for yoB ? 

Jury, Our foreman. 

Clerk, How say you? Is William Hales 
Guilty of the misdemeanor wherewith he stanils 
charged, in forging a note for 1,650/. tod in- 
iloruug the same, and in publishing the same 
as a true note and indorsement, knowing it to 
ba so forged and counterfeited, or Not Guilty P 

Foreman. Guilty. 

Clerk. How say you, Is Tliomai Kinners- 
ley, &c. 

Fweman. Guilty. 



Mr. Strange, My lord, we desire that Mr. 
Kinnersley may be now committed. 

Judge "Rtynoldi, Whence was he brougfal 
hither P 

Mr. Strange. From the Compter. 

Judge Reynolds. Well, now that be ii co» 
victed, he must l»e committed. 

Kinnenley. Whither, my lord? 

Judge R^^lds. To Newgate. 

Kinnersley, But, my lord, there arc tm 
writs against me which fix me to the Gomplv. 

Judge Reynolds. They will follow yea 
doubtless to Newgate. 

Kinnersley. But, my lord, the order of Iba 
lord ehiefjustice was, that I shoukl he oaa* 
mitted to the Compter till discharged. 

Judge Reynolds, Your being ordered Id 
Newgate, is a discbarge from the Compter. 

Kinnersley. I bless God that I go back ui- 
nocent of the charge against me. 

Judge Reynolds. Jf yon do in your om 
apprehension, it is not so in the appeebenain 
of the jury. 

Kinnersley. My lord, I thought I bai 
cleared that matter. If Mr. Hales bad broogbl 
me that note to sign, I believe that I ahnlA 
have signed it: hut I should not have done il^ 
if 1 had known that Mr. Edwards's nuDe wn 
fraudulently obtained to it. May I oever sea 
the faoe of Almighty God, if 1 was ever privTlt 
any of Mr.Hales'sfoigerieB! IfyoarlMdnip 
please to direct me to Newgate, I derirnll 
may be immediately, for I am ill, bavug baa 
here so long. 

Judge Reynolds. It will be preaentlj, fti 
the Court is going to aiyocirn. 



477. The Trial of Wilmam Hales,* for frauduleatly forging and 
counterfeiting a Writing, purporting to be a Promissory Note 
of Samuel Echrards, esq. to Samuel Lee, for Four Thousand 
Seven Hundred Pounds: 3 Glorgg: II. a. d. 1729. 



The Jury called over aud sworn. 

Clerk. 0Y£Z, Oyez. If ^y one can 
inform, dec. 

Imdictmbnt. 

Gentlemenof the Jury, William Hales stands 
indicted by the name ol William Hales, of Lon- 
don, late goldsmith ; for that on the 1st day of 
August, m the 8d year of bis majesty's reign, 
be did fraudulently forge and counterfeit a 
writing, purportinfjp to be a promissory note, in 
these woiils followmg, 

« March 30, 1788. 
" Six months after date, 1 promise to pay to 
Samuel Lee, or hb order, the sum of four thou- 
aaod seten hundred pounds, for y« value re- 
eeifed, Samubl Edwards." 

* See Ibe prwedug CaaasL 



and that he did knowingly and wittingly pobUab 
the same as a true note, knowing the same to 
be so forged and counterfeited. 

9/lr. Strange. May it please your kwdabip, 
and you gentlemen of the jury, this is an in- 
dictment ag^nst Nr. William Hales, for forg- 
ing a note in the name of Samuel Edwam, 
esq. and publishing the same. It sets forth, 
that on the iRt of August, in the 2d year of bin 
majesty's reign, he forged a note in these H'Onta 
following, &c. 

And it further sets forth, that the defenihmt 

Kublished the said forged note as a true note of 
ir. Edwards's, knowiug the same to be forged 
and couutcrfHted. 

Sen. Whitaker. May it please your lord- 
ship, 1 am counsel' in this cause for the king. 
Gentlemen, this matter is of the same naturo 
with some former indictments : I shall there- 
fiwe take up but little of yoor line. It 



8S9] Jor a Misdemeanor. A. D. 1729. [S90 

pnrt, gratlanen, to ns, that this is the effect should rome upon yon for the affirminc^ of thii 

nf ftinie firmnk ooTers, that Mr. Hales hath jiid<rineiit. Upon this sir Diby Lake was io- 

frudalditly obtained of Mr. Edwards. 1 need diiced to be his sccurir v ; thus he came to haVe 

Ml DOW acquaint you, that Mr. Edwards did this note delivered to him. Gentlemen, when 

ht some time induliire Mr. Hales with frank we shew you, as we must, it bciii^ afresh case, 

coTcn, which Mr. Ilalea pretended that they how he bad fVanks from Mr. Edwards, theme- 

vere lioi^ed for aenilinf|r news into the coun- thofl wherein he hath made this use thereof, 

trf . This note, jg^ntlemen, is even a i^rosser and itien that this note was thus delivered to 

fn^i than the utlicrs can be Rup|K)sed to be. sir fiihy Lake ; and you have considered the 

Bmeasam of 4,700/. which Mr. Edwards is several circumstances of the case, it will appear 

soffHcd tu promise to pay within six months both that this is a for^^ed note, and hy whom it 

ifllefdile to Samuel Lee. This Lee we have %vas for;Ted ; that Mr. Hales was the person on 

into the chanictcr of. He is one that whr>m it must be charfrcd. 




l0 

Ihii ^ ^ ^ 

for 4,700/. Gentlemen, when' you come in betwet^n that and liie r; and that there not 

to kiok upon this note, you will see on it the beini;' sufficient room, therefore the word 

pUnestmarka of fbri^y that can be. When ' pound' is crowded in, in n narrow manner, 

ytu ooroe to look upon it, you will plainly see cuid then fullows the j/i so that it is not possible to 

thai ■ ffree Samuel Edwards' still remains s!>ppn::p th it i Cany 7;entlemnn had wrote it be- 

fiyhlc There is the double / which Air. fore the // u ns wrote, he v. ould have crowded 

Edwards jfenerally useth, which we shall tiic word < pound' into no narrow a room. Bat 

yrsfe br witness. And then between the j^*and there was tliou a necessity for it. 

Ihtrtbereisano struck in, which you will T/iomai Maddox, Anne Clarke, and Mr. 

IS not the same wntmrr witli ihe^ Booth, were called, sworn, and deposed as be- 

le with* Samuel Edwards.' i\nd then fore ; and the note ol direcliona was again read, 

out the v« you will see the two ce are m*^ o • ^, ^„«,„ 

i..»«.toiiimkeavwithastrokeatthcbottom « «/ - ni ' * ^^^t «.. iw «n*. 

^«i^ - u-* *u-* -.*'ii *!.*-. • -Li Mr. Slranee. Please to look on that note, 

? ^rS^ L! h ■•?"* P'^'y """ *'<"« Mr. Kdwar.ls'8 ? 

F ^SSS^. !^1T.l"itiT iT.if^" Spiccr. The name i. bis, the ^and the r i. 

i J?!"i*^ ''*J"'v ''" M?"* "'^""'^' also hi"- The o seems no to Kc of the same 

Inn * value received. You will see a con- • i i • zv ■ j j • rm 

j.^u i_^ii -.«/*! «••* I.* I \ mk, and la afterwards crowded m. The via 

depth beneath, and that it must be cut uq* i,:g 





•ffft» »on>ethiDg ei«>. How it was, it «.»- „, g^ y^,^^^^ -^ M, Edwards's way 

CBis Mr. Hales to shew. As to the method off|.a»j,- ^a 

vbcniDthis came to be discovered, it issuHi- o • W?^^^ a . i T?.i.»<a»i. » c Vm^^ u^ 

^:^^^» II -. .u « «i • I 1 1 - • 1 iSp:cfr, * Free Samuel Luwarus. * rrec he 

Ci6Btt«tell vou, that this had been occasioned ..«./ii., ... •»_ -.i a- 

I .. J- • c * r I ■ *i usurilly writes With a //. 

t|r lae discovery of a note forafcd ui the name itT- c/ rh- 1*^ . «««- !,««.« u:«* :- 

Jr If- r«u- - - I ■ - I '. -Mr. Stranfre: Did vou ever know nim m 

•f Jir, uibsM>n, an apprehension and commit- r ^ i - i I'li 1 1 r i vj 

_^. ^^ •, -I* , '^'i ^ ,, . t' frankiiirif, make use oi the word HrankV 

■eotof Mr. Hales; that this jjavc occasion o -^ •^ ^i-- 

for several persons to enquire into the vpfiditv \tl ^c# ' **' ' ' ii« - i ^ i « «^.. k*.«» •« 

^.i ' I • I. .1 I I I i- - ^If- Strange. How lonff have you been ac- 

ihoje notes which they hid received irom n„„;n,,.i „:,f h;^ v * ^ 

Nr. Hales. As 

!!I!!1 ^^^^ !!V* !r". T'^^rT T''' "*'''T ^'^- SUa^wx, mx vou ever know him any 

T^Z, ^»\ '^^l^^** »^.c^'"« *" ^" discovered, „.,,.^^ ,,,nn...,w..i ..:... s ,.«.,nl 1^^ ? ' 

thit \Ir. Hales had 

lbi» promissory 

SubqpI Edwards 

BMMllhs after date uf i^aumiri Ajt'i:, lur ^^HJUi. Vi t«, t-* ^ jI : i. j.!..* U-.;^-. *« 

1. .1. ^ -^ *u * •* ^1 1 Mr. Slianiic. Uo vou think, that beinff ac- 

h.»ed OMrniHyJUke: Mr Hales had been J, ,,,, ,,^,,^ ,. -f ,,,„^ , j ^ ' J 

i» k*e!i on the evil ilay as loncf a» possible, it c x- w 1 1 r «• « r ..k<«..m 

.„ • . » "^ - 1 » *• I S..:rcr. i cs. Sir. i bolM*vo tiiat I snoulu. 

wu necessary to procure some substantial per- ,■ ... tvi «* r -4i <.«o»n<. i..»« 

.^ . I I- -ir I-— :- ivi T I ' '*«r. i^trntice. What lurther reasons nave 

mui be bail for him ; sir Biby Lake was np- ^ . • ,• ^.i- ..^i ■ ..,„i 

^i;.. . . - i_. J.- "i .1 'i* you to believe this not tone his note; 

pM to, bemsf a very subslaiflial f'entleinnn. It -^ c ■ i . „ i i- #i • *.. k<«i.:. •.rm«« 

L_- tv^-. r o _^ - ir t1 -i ii S-yurr. I can never hfMievr this t'> be liis note, 

W^on.Wraof firwr an.Uoracon«.lcra^^^ for 'he never j;ir,^ a..v promissory ..-.ts for 

•i, that be was dwire.1 to be bail for Mr. ^. „„^ „ •'„,„^ ^^ ^„ ' „i„,„,„ '„^i^ ^,^^ 

tulffi, he made a scruple, and rriused it at • i' . a i ■ „. « i «.. i 

K.^ — I —La • I. ii* « •* ■»! II I whole note with his oivn liantl. 
WM: at length to induce hirn to it, wlr. Hales 

•id to him. Sir, you bhall be at no raaniier of ^'^ ^^'h '-«'"<^ s-.v irn. 

HA; I have a pronii^sory note for 4,700/. Srrj. Whiftilicr, Sir, pray j-Ict-:^ to jjive ui 

•hicb is made by Mr. E'hvjircls, who 'n a sub- an arrount,.whpM you ^^-..w il»it ivi.r Tr ;«., !:;")i 

Mftatial man, payable nithin a'lx months:: this wliat fM*cas>on ii wa^ It > y^' '. l'» y)'A, uu-i l>y 

Will be an ample lecurit^', if an execution ^thoin it \tas dcUvLTcdtoymi ? 

Vt>L. XA II. U 



•91] S-GEORGB IL 

, Sir Biby I^ke, About tiuatimtWeWemonih 
llr, Williim Hi}f» sent Mr. Kiaaenle; to me 
al mv huuie iu Croiby-aifuaK, wbo UtU me 
ibat Mr. Hilei wu arreued upno ■cconnt uf 
abuaJgi^en bv him, anJ Blr. Kobert Hiles, 
to Dr. ftlnpletoii at CaoluHiury ; tbat the 
Doctor hBTiog arreateJ Mr. William Halei, be 
ilMired Ibat I woutil be bail tor bin). I deaired 
Hr. KiriDeriley to roeei uie Id iheereniDg: 
we tiien weot to the judge* cbamben, and 
give bail to the action. I tbought, that there 
feiug no difficuiiT in the gentleinaD'a appear- 
ance, there would be no damage in doing that 
ibr a (rinid. Afterwards Mr. Halea camehim- 
■eiftome, and desired me that I would be 
bail again far him. I lolJ bim that it waa 
Mmewliat eztraorditian' ; hot that however I 
would meet him at Mr. Tumer'aBt Staples-iiia, 
b> CDiiaider what to do. He came to me there 
aboat four or fire, and brought a gentleman 
with him, who be told me waa bit attorney. 
Atfint, he told me not: but afterwards, we 
imdeniaod that it was to ■ Writ of Error Ibat 
I wai deaired to be put iti bail. I waa then 
tirid by Mr. Turner, that if I waa bail to tliat, I 
muM pay the money if they did not. Upon 
thb I totd Mr. Halet tliat 1 cared not to be hail 
In tuch a matter ai this, unless he would give 
me Kund aecurrly. He told me that he waa 
^iw to Peet'i coffee- honee, desired that I 
would consider of it, and come to him again. I 
alaid to consult Mr. Ttrmer, and toM him that J 
wovid not be bail except Mr. Halef would giTe 
«M good security. I theo went to Pecl'i 
coffeehouse, and there found Hr, Hales and 
Mr. Kinnersley together. 1 took Mr. Hales 
to another part of the room, and told him, that 
I wonld not enJanger myself and my family 
W far as tn engage for such a sum, it being 
abuul 1,500^. unless be would give me good 
■ecurity. Upon this he put His hand in his 
po«^ket, took out his pocket booh, and took out 
of it tbii note. He looked upon i1, and said, 
Ibat it was a promissory note Ibr four thousand 
and <jdd pounds, .ini) vras |inyable within two 
or three months afler. Hn put it into my 
iMod : 1 looked upon it, and thought it was 
»ery good secnrily to me for siiph a sum. Hf 
desired that I would kevp it iu my own hand 
till the raooey that 1 whs security for was paid ; 
but said, that he would jmy tho money tontf 
IbefcrelcouM hecalled upon-. 1 thought I had 
■officient satisfaction, and went thereupon be- 
ftee Ibe Isnl chief-iuttice lluymond, and gave 
fcul to the Writ of Error. 

Nei). WkUaktr. Sir, I would desire vou to 
look oo the notr, and on the twck of ft, and 
tell us whether it bath had any alteration f 

Sir Biby Lake. None, Hir, tliat I know of. 
Bnt I must give yon s particular account of 
•tie thing. It was nut ail the lime in thesanio 
cusliHly. Before 1 came there, my servant 
went and wailed for me witli my hone in Hoi- 
boni, 1 beinz going out of town. Going tbere- 
^re to Air. Turner's, 1 desired bim to lay it by 
Ibr no in his dnwcr, where he hath otbo- 
fi|Mra of mine. Acoordinglj hedidlajr itop; 



Trial of WmamHaUi, 

and from that time it waa (In,, 
Turner's cuMody, till after the time tj 
Halea was taken up. When that ha 

Harleof the million bank tent a 

thereof. Upon that, when I came in. 
to Mr. Harle, and told him Ibat I had 
note of Mr. Eilwarda's in my hand ; a 
I) hearing that you have a auapiclon I 
.hat is in your bands is a bad note. 
. reason to denre yon to go to !i 
wards, and acquaint bim, that 1 bare 
note iu Mr. Turner's custody, who is 
Derbyshire. All thati could then do, 
denre Mr. Turner's clerk to send to 
the ker> that we might take oat the I 
shew It. The clerk did so; and afb 
time bad the key tent him, took out t 
and I desired him to carry it to Mr. E 
Jt was the same day that the note beca 

Sir. Turner swoni. 

Serj. Whilaker. Mr. Turner, pray [ 
kwk upon that note, and give us an 
when you tint saw it ? 

Turner. 1 believe it was one day io 
Ifinniog of July last, about five or sii 
ID the afleraooo.' I cannot be particul 
the day, bnt I believe that it was the si 
that sir Biby Lake gave bail Iu the 
Error. He then brought me the noti 
by for him. 1 verily bdieve thia to 
same note. 

8erj. Whitaker. Hath it had any al 

J^rner. No, Sir. He desired me I 
for him in a drawer, where I had othe 
papen: accordingly I did: I new 
town in Au^^uDi. AlUrwards my cli 
me word, tliat sir Uiby L^ke desireij 
would send up the key of the drawers, 
to his notes being taken out. Upon tli: 
up the key to my clerk, direclea him i 
drawer the noti.> was, desired tliat h 
take il out, and carry it to sir Biby Lai 

Mr. Jlfure iwom. 

yir. Strange. Dujou remember. Sir 
reuejied a key from Mr. Turner? 

More. Yes, Sir. 

Mr. Strange Did you iheimpon I 
note in the druwer ? 

Jlforr. Yes, Sir; in thedrawer ofth 

Blr, Strangt. Did you make any all 
in itP 

Mart, No, Sir; I took il out, and c 
to Mr. Edwards. 

Air. StraHgt. Hr. Spirpr, you are aci 
nith iMr. Edwards'K nay of dealing. 

be mves au ' ■' ' - 

whole note f 

Sputr. Yes, Sir; [ never knew h 
any bnl tluit he wrote the whole note. 

Hr. Slienge. Doth he use to givo t 
lime? — Spicer, No, Sir, never. 

Mr. Strange. Aly brd, we DOW da 
Uw note may be read. 



S9S] for a Misdemeanor, 

Note read. •' March 30, 1738. 

■* Sis months after date, 1 promiie to pay lo 
SuMd Lee, or bis order, the sum of four 
~ ae? en huodrcd miuDds, fibr tlie?alue 

Samuel Edwards." 

ladoraed, «< Samuel Lee." 

Vr. Strange. You will obserre, {jfentletneo, 
Aa vai * ffree' is legible atilt, and ubMir? e how 
Ihiivd * poQiids' is crowded in. 

Blr. Bird sworn. 

fci Wkiiaker. Sir, do yoa know Mr. Sa- 
■ad Lea T-^Bird. Yes, Sir. 

Sari. WkUuker. What is he ? 

Bird, A sea faring man. 

Bcri. WkUoker. Do you koow his wife ? 

Bird. Ytf, Sir. 

Sen. Wkilaker, Did she nurse a child for 
air. Hales? 

Bird. Yn, Sir ; two for se? eral years. 

Soj. Wkiieker. Is he a man of worth ? 

Bird, No, Sir ; be is not worth 5/. in the 
wU. 

fai. Rah^. What say vou to this, Mr. 
Bihif You see that they fiaveffifen an ac- 
> of the method that you took to procure 
^ers. This note they say, that you 
as a true note, how should it come 
that such a |ioor |M*rson as tliis Lee is 
Kse OTer such a note to you ? 

Bala. Mr. Lee gave it mc, there being 
MaicB due to me. 

8tij. Kdby. If you can prove any transac- 
fm WtwecD yoa and that Lee, to induce the 
jvytobelieTe that it was given you upon that 
oaaderation, it will he pro|ier now to do it. 
Rifci He is gone abroad. 

Hej. Raby, Is there any person that can be 
witDcss of any such transaction ? 

Btia. No, Sir. 

Hcr|. Raby. Gentlemen of the jury, William 
flalft of London, late proldsntith, 'stands in- 
^Ktedfor forging a note for 4JU0/. payable 
vithin six months after date to Samuel* Lee, 
oropler, in the name of Samuel Kdwonis, esq. 
lad for publishing the same as a true note. 
Yoa see, gentlemen, that there have been 
feneral witnesses produced to shew how he got 
pQsnsioo of frank covers, on pretence of 
•ending news into the country ; and that he 
Mtti a paper of directions for some, which di- 
Rctioos were very shorl, ami so convenient fur 
iW writing in the intermediate space over the 
time, such a note as this. And they have 
■«oro that these directions are his hand, 
vkicb were sent over by his servant to Mr. 
Edwards for franks. Now to shew you that 
this note wss published by this man as a true 
SMe, and that he is guilty hereof, sir Biby 

lake hath appeared. He tells you, that 

Acre were two several applications to him 

^ W bail for Mr. Hales ; thaf he complied 

MIy with the one, but the other he made 

*ac icniple of, because it was more dan- 

(Kaos ; it beioff to a Writ of Error, and for 

ite 1,500(. He was therefore more cautious. 



A. D. 17«). [204 

and would not do it without security. He tells 
you, that upon this, this note was offered and 
deposited in his hands by the prisoner. This, 
if you are satisfied of it, iixes the note uptm 
the prisoner. Jt appears hereby, that it «i*as 
in the hands of the prisouer. He cannot shew 
you how he came by it : that then is a strong 
proof to fix the charge in this indictment upon 
nim. Where a forged note is found in a per- 
son's possessicm, and it appears that he offcretl 
it as a true one, and cannot give an •^count 
how he came by it, that fixeth the charge of 
forging it upon him. This note was published 
in the city of London, and therefore the forgery 
in the indictment is fixed there : for it is im- 
possible to know certiiinly where a note is 
forged, since no one calls evidence to see him 
forge a note. Thus it appears to have been in 
his custody, and it cannot otherwise be proved. 
Other witnesses have been produced, to shevr 
that the note hath uot been altered since it was' 
delivered by him. Mr. Turner tells you, that 
he received' it from sir Bibv Lake the day that 
he receive<l it from Mr. llales, and laid * it by 
lor him in his drawer; so that from the time 
that it was published, it continueth in the same 
state that it then vi'as. Other circumstances 
have been laid before you, as the manner of 
Mr. Edwards's making out any notes. He 
doth not give out any promissory note made 
for time, nor doth he ever give out any what- 
soever but such as are all of his own hand- 
writing. Another circumstance that liath been 
laid botbre you, relates to the person to \^ hom 
this note is made payable. It looks like a con- 
trivance to have it ull in his own management, 
in the hands of his servant, ami within his own 
reach ; that this note should l>e mnde payable 
to a poor man, whose wile was nurse to Mr, 
llales's children, and the witnfss l»clieves him 
not to be worth 6/. in the world. How should 
he be entitled to this hill for such a sum, which 
he might have indorsed to any other person? 
No one sure would trust such a note with such 
a person. He could not lie possessed of it iu 
his own ri;;ht, and no otlu*r person would en- 
trust a man, not worth 5/. with a note of this 
value. This circuiiistunce tliey oifer to your 
consideration : an<l tlioy take notice of some 
letters which shew that there was originally 

* ffircp,' wiiich is now turned into *for the,* be- 
fore ' value rccfived.' Ii appears that it wa^ 

* ffrcc Satniicl Edwards:' and it i<) almost legi- 
ble notwithstandini; the alteration that iiath 

a ■ ■ ■ ■ 

In en mnde. He Imih suid nothing in his de- 
fence to shew how he came hy that note. He 
saith that l^e ^nve it him. Is it likely that a 
man not worth 51. in the world should (five 
out such a note as this 1' 1'lioii;r|i there is 
no direct evidence of his for^iiii; it, that makes 
no alteiation : if he directed it iu he done, it is 
the same thing as if he did it himself; nor 
doth it appear that any but liiin«4*lf is concern- 
ed therein. He haviiifir |iublished it, is ifuilty 
not only of the piib:icaiioii, bui ot' the forging 
of it : if you believe it to l)e a forged note, ho 
is guilty of the forgery. His publikhing of the 



295J S GEORGE 11. 

note is a safficient evidence of it. If a maD 
had receiFcd such a note, be would readily say, 
I received it of such a person on such an occa- 
sioD : but there hath been no evidence of this 
nature given. If you ask a man, how he came 
b^ this or that things, he saith another gave it 
iiiin : that may be said in every crimiual case ; 
it is often said, but never regarded except 
proved. You are tlicn to consider all 
these circumstances, and to judge thereupon 
whether it is a forged note ; whether it is 
likely that Lee should have a note of this 
value, and that there should be any reason for 
his delivering such a note? There has been 
no pretence of any transactions between this 
Lee and Mr. Edwards, nor any colour of proof 
on what consideration the gentleman should 
H'rite such a note payable to such a man, and 
give it him. Gentlemen, here is as full and 
plain proof as can be expected, if the evidence 
swear true ; so I leave it to you. 

Clerk. Are you all agreed in your verdict ? 

Jurif. Agreed. 

Clerk. VYho shall speak for you ? 

Jury. Our foreman. 

Clerk, How say you, is William Hales 
Guilty of the misdemeanour whereof he stands 
indicted in forging a uutc in the name o\' Sa- 
muel Edwards, esq. f(»r 4,700/. and pullishing 
the same, or Not Guiltv ^—Foreman. Guilty. 

Serj. ]VJiilaker. Af\' lord, the note being 
found to be forged, we desire that sir Biby 
Lake may deliver it to Mr. Edwards. 

Sir William 'Thompson, That is but common 
justice. 

Mr. Sf range. My lord, there is another in- 
dictment : but we will not trouble your lord- 
ship with thut ; thercfurc the jury may be dis- 
charged. 

Serj. Whitahcr. Bly lord, we think it proper 
to take notice, that upon the three indictments 
whereof he hath been found guilty on the sta- 
tute of king Henry U, for obtaining money by 
false tokens, tlu're can l>e no fine in the case : 
VfQ must therefore crave corporal punishment. 

Sir William Thonij/xon. The question is, uhat 
corporal punishmeni l*" To be sure he will be 
pilloried. 

Serj. Whitaker. The pillory, my lord, is no- 
thing. The gentleman hath endeavoured to 
t^et many tliousaud pounds of several gentle- 
men : now he is only to look through a wooden 
casement, and this is to make recompeiice. 
AVe humbly hope, that according to the t\oiils 
of the act of parliament, some punishment will 
be ordered, not only ignominious but cor|N)ial 
punishinciil, as the words are very exteM<>ive. 

Sir WilUum Thompson. The Court lo be sure 
will order icnprisoiiuicnt, as well as the pillory, 
and security afterward. 

Serj. Whilakcr. Hut should not the punish^ 
mem left to the discretion of the Court be ex- 
tended lo Komctliing further? 

Sir WilUum Thompson. 1 am not for extend- 
ing it to ti)rtijre. 1 know not any precedent ; 
wniilil I beLMn any thing of tlibt nature, 
-iog himMlf la limited by our bw. 



Trial ff WiUiam Hdet. 



[«96 



nAa^ 



Serj. Whitaker. The penalty seems left to 
the discretion of this Court. 

Sir William Thompson. I would not extend 
it. 1 do not know but that the parliament oiay 
think of something else afterwards. 

Serj. Whitaker. Well, Sur, 1 have laid U be- 
fore you, 1 submit it. 

The Judgment of the Court : 
That William Hales and Thomas Kinnefs- 
ley should stand twice in the pillory ; once in 
Fleet-street, at the end of Fetter- lane, and once 
at the Royal Exchange, in Coruhill. 

TIrat Hales should pay a fine of fii\y mtrk% 
suffer five years imprisonment, and give seca- 
rity for his good behaviour for seven years af- 
terwards. And, 

That Kinnersley should pay a fine of 2001 
(an hundred on each indictment,) suffer two 
years imprisonment, and give security for hit 
good behaviour for three years longer. 

Air. Hales begged that two years of his im- 
prisonment might be remitted on account of his 
age ; but it was not granted. 

February 11 following, Hales and Kinners- 
ley stood in the pillory at the Royal Exchaogi 
in Cornjiill. 

February 15. They both stood again in tbe 
pillory at Fetter- lane end, in Fleel-sticat 
Kinnersley stood both times in his canoDial 
habit, thinking to draw comfiassiou and re- 
spect from the popuhice, but it had the OM- 
tmry effect. 

Feb. 18th following, died in the Press-wd 
in Newgate the said William Hales ; and April 
7, 1729, died in the same place, of a fcftfi 
Thomas Kinnersley, clerk. 

" Forgery is now made felony, without be- 
nefit of clergy ; as is likewise the publishing 
any forged deed, will, bond, note, indorsement, 
<Scc. knowing them to be forged, by the stat. 9 
and 7 Geo. 2, which see for the several parti- 
cular cases there mentioned.*' — Former Edit. 

See, also. East's Pleas of the Crown, c. 19« 

As to proof by comparison of hands, to which 
it appears that recourse was had in some of 
these Trials, see in this Collection AlgemoB 
Sidney's Case, toI. 9, p. 8t7. See, also, vol. 
19, pp. 397, et seq. vol. 16, p. 200. 

At the time whf n these frauds were com- 
mitted by Hales and Kinnershy. it was usual 
for privileged persons to frank letters by mere 
indorsement of their names. By stat. 4G. 3, 
c. 24, it is required that members of either 
house of parliament shall write the whole super- 
scription thereof. A history of franking is in- 
serted in the Gentleman's 3lagazine, voL d-l^ 
p. 644. 

Some years after these cn<!r< of Hales and 
Kinnersley, a curious uttuuipt was made by 
one Fournier, a popish priest and fugitive from 
France, to dejfraud bishop llondley of 8,900/. by 
means of a promissory note furled on a frank. 
The bishop published an account of the trans- 
action, of wnicb an abridgement is inserted in 
the Supplement to the Geutlemaii's MagajeiiM 
for the yew 1757« See, also, 2 Vciey, 445. 



S971 Proceedings in ilii House of Commons^ tfc. A. D. 1729« 



[898 



478. Proceedings against John Huc-gins,* esq. Warden of the 
Fleet, Thomas Bambridge, esq. Warden of the Fleet, 
Richard Corbett, one of the Tipstaffs of the Fleet, and 
Wm. Acton, Keeper of the Marshalsea Prison : 3 George II, 
A. p. 1729. 



i IlPORT FROM THE COMMITTEE OF 

THE House of Commons appoint- 
ed TO enquire into the State 
or the Gaols of this King- 
dom, so far as relates to the 
CRUEL Usage of the Prisoners ; 
which occasioned the following 
Trials. 

Jovb 90 Die Martii, 1729. 

Mr. Ogpktborpe, from the Cominittee ap- 
pmei to cnquive into the State of the Gaols of 
Hhi kHwdoin, made a Report of some progress 
vkMh ibe Committee had made in their enquiry 
blilht state of the Fleet prison, with the Re- 
■riMH of the Committee thereupon ; and he 
mi the Report in his place, and aUerwards de- 
botdlhesame in at the table, viz. 

The Committee find, That tlie Fleet prison 
eient prison, and fonnerly used for the 
I of the prisoners committed by the 
al-table, then called the Court of tlie 
SlvCbamber, which exercised unlimited au- 
ifaari()-,and inflicted heavier punishments than 
by lar Jaw were warranted. 

Aai as that assumed authority was found to 
be ao intolerable burden to the subject, and the 
ncaoi to introduce an arbitrary power and ^o- 
icremeni, all jurisdiction, power, and autlio- 

* See New Pari. Hist. vol. 8. 
** Aad here cau I forget the geoerous band 
Who, touch'd with humau wue, redressive scarcbM 
kio the horrors of the gloomy jail ? 
l'r.piu«d. and uu heard, where misery moans ; 
Where sickness pines ; where thirst nnrl hunger 
And poor oiisfortune feels the lash of vice, [burn, 
Wtule in the land of liberty, the land 
1(~bofe every Mrcet and public meeting i;low 
Wuhopen freedom, little tyrants racM ; 
j^cutch'd the lean monM^ fiom the star\-ing mouth ; 
Tcrt from cold wintry limbs the tatteHd weed, 
L«tD robb'd them of the last of comforts, sleip, 
Tb« firee-bgm liriton to the dung* un cbainM 
'>r, V. Uie lukt of cruelty prevail'd. 
At pk-asure mark'd him with inglorious stripes ; 
And cni»hM out lives, by secret barbarouk ways, 
T^atfor their country would have toil'd, or bled. 
great design ! if executed well, 
Vnh (latient care, and wisdom- tcmper'd zeal. 
Te looi of twTcy ! yet resume the search ; 
INtg forth the legal monsterx into light, 
Vrmdi from their hands oppression's iron rod, 
Aad bid the cruel feel the pains they give." 

TaQMsoii's Winter. 



rity belonging unto, or exercised in tlie tame 
court, or by any the judges, officers, or mi- 
nisters thereof, were clearly and absolutely dis- 
solved, taken away, and determined by an 
act made in the 16th year of the reign of king 
Charles the 1st. 

And thereby the Committee apprehend all 
pretences of the wan!en of the Fleet to taka 
fees from archbislio|>8, bishops, temporal peers^ 
baronets, and others of lower degree, or to put 
tbem in irons, or exact foes for not doing so, 
were determined, and abolished. 

That atler the said act took place, the Fleet 
prison became a prison for debtors, and for con* 
tempts of the Courts of Chancer^*, Exchequer, 
and Common Pleas only, and fell under thtt 
same regulations as other gaols of this king- 
dom. 

That by an act of the 92d and 2dd of kinj^r 
Charles the 2d, the future government of all pri- 
sons was vested in the lords chief justices, the 
chief baron, or any two of thi-ro, for the time 
being ; and the justices of the peace iu I^oudou, 
Middlesex, and 8urry ; and the judges for the 
several circuits ; and thejusticcs of the peace, 
for the time being, in their several pn clucts : 
And {iursuaut thereunto, seveial orders uiid re- 
gulations have been made, uhich the present 
warden of the Fleet hath not regarded or com- 
plied with, but hath exercised an unwurranlablo 
and arbitrary power, not only in extorting ex- 
orbitant fees, but in oppressing prisoners for 
debt, by loading them with irons, worse than 
if the Star Chamber vias still subi»isting, and 
contrary to the Great Charter, the foundation of 
the liberty of the subject, and in defiance and 
contempt thereof, as well as of other good lawK 
of this kingdom. 

it appears by a patent of the third year of 
queen Elizubeth, recited in letters patents 
healing date the I9lh year of king Charles the 
2d, that the Fleet prison was an ancient prison, 
called Prisona de le Fleet, alias. The Queen's 
Gaol of the Fleet ; and that certain constitu- 
tutious were then established by agreement be- 
tween Uichard Tyrrel, warden, and the pri- 
soners ol'tlie Fleet, and a tabic of fees annexed, 
in which the fees to be paid by an archbishop, 
duke, uiaiipiis, earl, or other lord spiritual or 
temporal, are paiticularly mentionetl, and the 
tincascejtained \ihieh they are to nay for the 
liberty of the house and irons ; ana that these 
constitutiuus and orders were confirmed by the 
said letters patent of king Charles the 2d: 
Which letters |»ateut grant the oHice of warden 
of the Fleet, and of the keeper of the Old Pa- 



3 GEORGE II. Proceedings in the House qfCommonSf [SOS 

tbe prifloners in the rules delirered iiim, to be 
cannot have executed the trust of keepiiur his 
prisoners in safe custotly, when he did not kaffm 
who or where they were. 

The Committee find that the said Thomas 
Bambridge, who for some years acted asde* 
puty- warden of the Fleet, and is now actnallj 
warden of that prison, hath himself been aidisf 
and assisting in an escape : that he canted t 
private door to be made through the walls of lb 
nrison out of the yard where the dogpc are^ tbe 
key of which door was kept by hiinself, and hk 
with his own hands opened the door and let oat 
Boyce, the smuggler, charged at tlie lung*! 
suit with upwards of 30,U00/. wbo WM aftar- 
wards seen at Islington, and hath beeo fetnd 
times let out of the prison by Bambridge. 

The Committee find that the said Bambridgt 
hath by himself and his agents ofteo refosed 
to admit prisoners into the prison, though eon- 
mittcd by due course of law : and in order to 
extort money from them, hath often, oontmj 
to an act of the 92ud and 33d of king GharUi 
3, without their free and voluntary cnMsei^ 
caused them to be carried away fh>m the pri- 
son gate unto a public victual hnjr or driokuigi 
house, commonly called a spunging-bouae, be- 
longing to him the said Bambridge as wardsi| 
and rented of him by Corbett his tipstaff, aM 
hath there kept them at exorbitant chami, 
and forced them to call for more liquor ikan 
they were inclined to, and to spend more thaa 
they were able to afford, to the defraudiDf si 
their creditors, and the distressing of their Ah 
milies, whose substance they are compdM 
there to consume ; and for the more eflcdnl 
making them stretch their poor remains of eie- 
dit, and to squeeze out of them the charity ol 
their fi-ieiids, each prisoner is better or wom 
treated according tu bis expences, some beinj 
allowed a handsome room and bed to them' 
selves, some stowed in garrets, three in one bed 
and some put in irons. 

That these houses were further used by tK< 
said Bambridge, as a terror for extorting mo< 
ney from the prisoners, who on secnrity givei 
liuve the liberty of the rules ; of which Mr 
Robert Castell was an unhappy instance^ a mai 
bom to a competent estate, but being onfortn 
nately plunged in debt, was thrown into pri- 
son ; he was first sent (according to custom) li 
Corhett's, from whence he by presents touBam 
briiij^ redeemed himself, and, giving security 
obtimed tlie liberty of the rules ; notwithstand 
in*j; which, he had frequently presents, as thr 
are called, exacted from him by Bambridge, aiM 
was menaced, on refusal, to be sent radc I 
Corl)€tt's again. 

The said Bambridge having thus unlawfallj 
exiortetl large sums of money from him in t 
very short time, Castell grew weary of beiii| 
mnde such a wretched property, and resolvin| 
nut to injure farther his family or his creditor 
for the sake of so small a liberty, he refused ti 
submit to farther exactions ; upon which thi 
said Bambridge ordered him to he re-commit 
ted to CorbeU'i^ vhcre tbe small-pox tbei 



S99J 

lace at Westminster, the shops in Westminster- 
hall, certain tenements adjoining to the Fleet, 
and other rents and profits belonging to the 
warden, to sir Jeremy Whichc^t and his heirs 
for ever. And the said sir Jeremy rebuilt the 
said prison at his oi^n expence, as a considera- 
tion tor the grant thereor. But tlie said prison, 
and the custody of the prisoners, lieing a free- 
hold, and falling by descent or purchase into 
the bands of persons incapable of executing the 
office of warden, was the occasion of great* 
abubes, and frequent complaints to parliament, 
till at length the patent was set aside. 

And a patent for life was granted to Bald- 
win Leighton, esq. in consideration of his 
great pains and expences in suing the former 

Satentees to a forfeiture, and he soon dying, 
ohn Iluggins, esq. by giving 5,060/. to the 
late lord Clarendon, tlid, by his interest, obtain 
a grant of the said office for his own and his 
son's life. 

That it appeared to the Committee, That in 
the yr:ir 1725, one Mr. Ame, an upholder, was 
carried into a stable which btofHl where tbe 
strong room on the master's side now is, and 
was there confined (being a place of cold re- 
straint) till he died, and that he was in good 
state of health before he was C4>nfined to that 
room. 

That the said John Huggins growing in 
years, and willing to retire from bnsine&s, anri 
nis son not caring to take upon him so trouble- 
some an office, he hath for several years been 
engaged in continual negociations about the 
disposal of tbe said office, and in August last 
concluded a final treaty with Thomas Bam- 
bridge and Dougal Cuthbert, esqrs. and for 
5,000/. to lie paid unto him, obliged himself to 
surrender tbe said patent for his and his son's 
life, and procure a new patent for the said Bam- 
bridge and Cuthbert, which the said Huggins 
did accordingly obtain, and Cuthbert paid m 
money, or gave good security to pay 2,500/. 
for one moiety of the said office of warden ; 
and Bambridge gave land and other security, 
which tbe said iluggins was then content with, 
for S,500/. being for the other moiety of the 
said office. ' 

Tliat Mr. Huggins being examined touchinsf 
an instrument signed by him in November 
1724, appointing Richard Corbett, one of the 
five tipstafis of or belongmg to tbe Fleet prison, 
acknowledged that he bad no power by virtue 
of any patent from the crown to constitute such 
tipstaff, but that when he came to his office 
he found that such an officer had been so con- 
stituted, and be took that for a precedent to do 
the same. 

That since the said Thomas Bambridge has 
acted as warden, the books belonging tn the of- 
fice of the \i arden have been very negligently 
kept, and the discharu^es not duly entered, to 
the great prejudice of many of fiis majesty's 
subjects ;^ and he hath not regularlv taken 
charge of the prisoners committed to his care 
by his patent ; and hath not, as be himself 
coofeaetbi e? er had any aotbentio list of 




Caaleil ocquunted liim willi liix 

Ml Ib&l (lislenifier, aoit Hint be 

lliKl llu; [)iilling liim into a 

iviiulil occasion iiis deuili, 

befbri! lie could xeltle Iiih 

tre a S"*'^ intinilice U> lila crc- 

woulil expose Ilia family lo ile- 

ind tlierefore be earai-sliy detireil 

■igkl eitber \ie sent lo tnulher bouic, 

m **» alo Uic sin) iuclf, w ■ Urnur. Tiic 
WhKWj COM ot'thii poor gentlemsn moved 
A*inis™U uf the «aicl Ilnnilirulere l*) COdi- 
■■•, Mt ib:i< Ihey also used their iiimoBt en- 
MMWi lo diiMiade him ftom sendiii|; ibis un- 
hfBf fricuDcr lo tbst infected house : but 
IwifcHu,! I«rctd hini lliilher, where lie (as be 
tead Ih tkvuld) caui{lil llic small'iwx, and in 
tfrwdati iDsd thereof, justly cbarfpn^ the 
■UBuiknilftr oidibiscleBlh ; and UDlmjipily 
Iwriag all lii* aflairv id the greatest confusion, 
■<iaHiti«roa* family of small ubildn-n iiilbc 

ll ifiii strd to Ihe Commillee, that the let- 
>l( sui af ibe Fleet tenements to fncluallei'*. 
fa At >*<«plioD of ^risnuers, bfitli been bul of 
tatrnctisAl, aoditiat the tint of llieni lelt for 
faprpoar was to Mary Wbitwood, nho still 
MMaotmaDi of the same, and that ber rent 
WB«d 3il. tier arm. Iteen iocreaaeil lo 60'. 
■rfannaio aunber of nriMDersitipulftied to 
h^akapny of, to enable her to pay so great 
ana; and that she, to procure the benclit of 
klr^i web a uuinhtr nl ptisoners sent to her 
h^ lialh, o*er and abore the increased rent, 
I^Msrdlo makeapresrnt tolheHBid Bam- 
Win •( fnrty ([uiiieas, a* also of a toy, (as it 
kOU) haag tbe model of a Chinese ship, 
H^^aaiWr. spt insil'er, far which fourscore 
InW-fKm bad (icrn olTrTed her. 

Ab* iJm' first method of extortia;;; money 
^■^ anlufipy prisonen ; and wliea they 
^•alaocer bearllie misery and et|ieni'eof a 
lfsipaB'Ti<HMe, belbre they can obtain the pri- 
•Afi tf hrtna; adiniitcd into the |<nsoo, lliey 
■■•Uicedlaewnply with such e\atbitant fees 
■ 1U «d Dambridge thinks fit to demaud, 
rtrt. tflbey do not, ihey are vure, under ta- 
Mi |s«i*nce*, of bein^ turned dDivn to the 
^^MM SHki, if not put m irons and diingeous ; 
■lllil* baabcra done to those who were wilbnif 
■'afemi to pay the Ires »labliEhe<l by the 
*~"'" m >n*dii by tbe judges ol the Common 
T(iD. T«m inr, which ought to hate 
^up iasume public ptoce in the priaon, 
Kahich (br friaon'ri might bare free access, 
ta via avcirlrd by ihi! said James Damea, 
pkMni lo unirr* uf the said Bambridge; 
^cb taUe iif Ifi-a srn'in* lo he unreasonable, 
■■ua It oldtiTi-i tiu-u nlin are committed for 
•• asini; alitr ' i' '-'-'- tti pay such 



9«lSIH* II 

H««T(ii 



1 JU. a.rt<.i< L of inch 

I ^b«!i,in< .iiiusfram 

I fc nlMtasiitc priKiiic, s, il„. i„ji,l Biitubrid||:e 
I ^"l |MWad* be lias a righx, as warden, 
Ik nnui as luliioilril [unmt of cbtnging 



a them ' 



John Ilug^m anclolhtri. A. D. 1729. 

pristneri from room lo t^>om ; ofliirniti|[ tli 
iQlo ilie common. side, thnn^h tliey bate paid 
the tnaater's side fee ; and loflicting arbili ary 
punishments by locking llieni down, in un- 
wholesome dungeons, and Idsdtnx them with 






e iuataiicet of nhich fal- 



Jacob Alendez Solas, a Portneorw, was, h 
far as it appeared to the Cnmniinee, one of the 
fiist prisoners for delit that erer was loadeJ 
tviib irons in the Fleet; the said BamliriilD* 
one liny called him into the gale-house of ihc 
prison, called the Lodge, iTh(.Te he candid liiin 
lo be seized, fettered, and carried to Corbetl's. 
ibe spungiuir- bouse.Bnd there kepi fur upwards 
uf a we«k, and when bron^it back into the pri- 
son, Bambriilge caused him tn be turned m[» 
the dun^on, called the Strong Room of tha 
Master's side. 

Tbis place is a vault like those in irhich the 
dead are interred, and wherein the bodies of 
persons dyini! in the said prinonare usually de- 
posited, till the coroner's inquest haih passed 
upon them ; it bas no chimney nor fire-place, 
Dor any light hut what comes over Ihc door, or 
thraiiglia hole of about eight inches square, ll 
Ib ueiilier paver] nor bonriled ; and Ibe rough 
bricks apjiear boib on the aides and top, bcinr 
neither walnscolled nor ptasleivd : what adda 
lo the dampness and stench of the place is, iu 
being built orer the common sewer, and ad- 
joining to llieaiiikand dung-bill where all the 
naslioess nf tlie prison is cast. In ihis miser. 
able place the poor wretch was kept by llie said 
Ilambridge, manacled and shackled for oear 
two montlis. At length, on leceiving live gui- 
Deas from Mr. Kemp, a friend uf Solas's, Bam- 
bridge released the prisoner from bis cruel con- 
finement. But though his chains were taken 
off, his terror still remained, and the unbappj 
was prevailed upon liy that ti 



re<|uirvd of him 1 and the Committee ihem- 
selres saw an instance of Ibe deep impression 
his suffrrinin had made upon bim ; fur on bit 
turmising, Irom souiEthiugtaid, that Baiiibridge 
was to return again, as Warden of the Fleet, lie 
fainted, and the blood started oitl of bis luoulli 

CapMin John Mackpheadris, who was bred 
a merchant, is another ntelancboly iDaiaiice of 
ihe cruel use the said Bsmbridge hath made 
of his assumed authority. Mackphcadria woa 
a considerable trader, and in a very flntirishing 
condition UDli I ihevear ITUO.wben beingbound 
for large sumslo tW crown, forapersnnatter- 
warda niined by the misforlunes ol that year, 
he was undone. In June, 1727, he was a pri- 
soner in Ihe Fleet, and although be bad beiore 
paid bis commitment- fee, the like fee was es. 
lorled from bim a second lime i nnd be baviog. 
furnished a room. Bambrirlge demanded an cx- 
travngaoi price lor il, which herefiuied to |iay ; 
and urged, tlial it was unlawful fur ihc warden 
i« demand extrarao'int rents, and ntl'ered lo 
|»ay whal was Ivguly dqe : ^olivitli«laodil>(f 



303] 



8 GEORGE IL Proceedings in the House of Commons f 



which, the said Bambrid-^e, assisted by tlie 
laid James Barnes and other accomplices, broke 
open his room, and took away sercral thinjfs 
of great value, amongst others, the king's ex- 
teat in aid of the prisoner (which was to have 
been retamed in a few days, in order to procure 
the debt to the crown, and the prisoner's en- 
largement,) which Bambridge still detains. 
Not content with thia, Bambndge locked the 
prisoner out of bis room, and forced him to lie 
in the open yard, called the Bare. He sal 
quietly under his wrongs, and getting some 
poor materials, built a little hut to protect him- 
aclf, as well as he could, from the injuries of 
the weather. The said Bambridge seeing bis 
unconcerned ness, said, ** Damn him ! ne is 
easy. I will put him into the Strong Room 
before to-morrow *," and ordered Barnes to 
pull down his little hut, which was done ac- 
cordingly. The poor prisoner being in an ill 
■tate of health, and the night rainy, was put to 

Et distress. 8ome time after this he was 
at eleven o'clock at night) assaulted by 
ibridge, with several other persons his ac- 
complices, in a violent manner; and Bam- 
bridge, though the prisoner was unarmed, at- 
tacked him wiih his sword, but by good fortune 
was prevented from killing him ; and several 
other prisoners coming out upon the noise, they 
carried Mackpheadris for safety into another 
gentleman's room; soon after which Bam- 
bridge coming with one Savage, and several 
others, broke open the door, and Bambridge 
strove with his sword to kill the prisoner : but 
be again got away, and hid himself in another 
room. Next morning the said Bambridge en- 
tered the prison with a detachment of soldiers, 
and ordered the prisoner to be dragged to the 
lodge, and ironed with great irons ; on which 
he desiring to know folr what cause, and by 
what authority he was to be so cruelly used ? 
Bambridge replied, *' It was by his own au- 
thority, and damn him he would do it, and have 
his life." The prisoner desired he might be 
carried before a magistrate, that he might know 
his crime before he was punished ; but Bam- 
bridge refused, and put irons upon his legs 
which were too little, so that in forcing them 
on, bis legs were like to havo been broken ; 
and the torture was impossible to be endured. 
Upon which the prisoner complaining of the 

Sievons pain and straitness of the irons, Bam- 
idge answered, "That he did it on purpose 
to torture him :" on which the prisoner reply- 
ing, " That by the law of England no man 
oiuriit to be tortured ;" Bambridge declared, 
** That he would do it first, and answer for it 
aftei^ards ;" and caused him to be dragged 
awaj to the dungeon, where he lav without a 
bed, loaded with irons so close rivetted that 
thev kept him in continual torture, and morti- 
lied his legs. After long application his irons 
were changed, and a suigeon directed to dress 
his legs, but his lameness is not, nor ever can 
be cored. He was kept in this miserable con- 
iSAaa fbr three weeks, by wfaiefa bis sight is 
yitly prqodioad, mid io daagcr of being toil. 



The prisoner, upon this usage, peti 
judges, and afler several meetings, a 
hearing, the judges reprimanded Mr. 
and Bambridge, and declared, << Tha 
could not answer the ironing of a nn 
he was found giiilty of a crime ;" be 
out of term, they could not give the 
any relief ur satisfaction. 

Notwithstanding this opinion of th 
the said Bambridge continued to kee 
soner in irons till Tie h&d paid him six 
and to prevent the prisoner's recov< 
mages for the cruel treatment of hi! 
bridge indicted him and his principal 
at the Old Bailey, before they knew i 
of the matter ; and to support that in 
he had recourse to subornation, and ti 
of bis servants out of places which 
bought, because they would not swe 
that the prisoner had struck the sa 
bridge, which words he had inserti 
fidavits ready prepared for signing, a 
they knew to be false. As soon as 1 
apprized of it, they applied to the loi 
who ordered the grand jury down to t 
where they fonnd that Bambridge wa 
^es50r. Bnt the bill against the prii 
mg already found, the second inquir 
late. 

The prisoners being no longer abli 
the charges of prosecution, which ha 
cost 100/. and being softened by pron 
terrified by threats, submitted to plea 
on a solemn assurance and agreem 
with Bambridge before witnesses, of fa 
one shilling fine laid upon them ; bi 
as they had pleaded guilty, Bambri 
advantage of it, and has continued 
them and their securities ever since. 

The desire of gain urged the said B 
to the preceding instances of crueltj 
more diabolical passion, that of malice, 
him to oppress captain David Sincia 
following manner : 

At the latter end of June or beg 
July last, the said Bambridge declar« 
said James Barnes, one of the agei 
cruelties,. **That he would have 
blood;" and he took the opportunity < 
festival day, which was on the first g 
following, when he thought captaii 
might, by celebrating the memory o 
king, be warmed witli liquor so far \ 
him some excuse fur the cruelties whi 
tended to inflict upnn him. But in-sc 
sure he was disappoiuted ; for cantaii 
was perfectly sober, when the said B 
rushed into Iiis loom with a dark lai 
his hand, assisteti by his accomplici 
Barnes and William Piudar, and sup| 
his usual guard, armed with muskets i 
nets, and without any provocation gi 
his lanthorn into captain Sinclair's fai 
him by the collar, and told him he m 
along with him : captain Sinclair, tho 

Erised, asked fur what, and bjr what 
e so treated him P Upon which Bi 



m 



iigahui John Huggins and others. 



A. D. 1729. 



[306 



:. iinikKiMd etptaiD Sinclair, who still de* i seductHi finnicby indulpfinir them in riot, and 
" ' • ^ ' • .••..•- lerrifitui otliers with fear of duress, lo swear to 

and subscribe such false uffidavits us he thought 
fit 10 projiarc for them, on several occas^ions; 
in all which wrongs and oppressions John Eve- 
rett also actrd as one of the said Bambridjre's 
wicked nccnmplires. 

That the said Bambridge being asked by the 
Committee, *' By nhat authority he pretended 
;to put prisoners into dungeons and irons ?" an- 
swered, ** That he did it by his own authority 
as warden, to preserve the quiet and safety of 
the custody ot the prison." 

But it appeared to the Commiltee by the 
examinations of many witnesses, that before 
the time when Gyhbon and the said Bamlnridge 
I acted as deputy- wardens under Mr. Hug^inSi 
the quiet and safety of the custody were very 
well preserved witiiout the use of irons or dun* 
(j^eons. 

That the two dun^^eons, called the strong 
room on the master's side, and the strong^ room 
on the common side, w«re both built within 
these few years ; and that the old method of 
punishing 'drunken and disorderly persons was 
putting them in the stocks ; and the ponisb- 
ment of those who had escaped, or attempted 
to escape, was putting them uiMin a tub at the 
gate of the prison, by way of public shame, or 
securing them without irons, in their proper 
rooms for some days. 

And tirat the said duns^enns were built in 
defiance of, and contrary to the declaration of 
the lord Kinfsf, when lord chief justice of the 
Common Fleas ; who, upon an application 
made to him on behalf of the prisoners of the 

Fleet, when Mr. Hucrj^ns and Gybbon 

ur^rcil that there was danger of prisoners es- 
cnpinjj, declared, that they mi/^ht raise their 
walls higher, but that there should be no prison 
within a piisun. 

That upon the strictest enquiry, the Com- 
mittee civjld not find that any pri*ioncrs in the 
Fleet for debt had been put in irons before the 
said Mr. Ilu.«({;ins had the ofiicc of warden. 

That it is not the oi<ly design of the said 
Thomas Bantbrid^e to cxt<irt nior.-. y from his 



Is kBOw by what aothority they so 
hw, BMnbridge grossly insulted him, 
"*', bim with bis cane on the head and 
wbilyt he was held fast by Pindar 
Hueb base and scandalous usage 
If Aiijprtlcmiii, who bad in the late wars al- 
l^iMliiiii himself with the greatest coii- 
Wy,|iiiiliy ind honour, in the service of his 
MtaOD miny the most brave and desperate 
MHi, muit be most shocking and intole- 
irikjjtlcafliiD Sinclair bore it with patience, 
,fl|iifiriytO(;ooutof his room unless he 
ipMM; vbereupon the said Bambridge 
10 ruD his cane down his throat, and 
bii gund to stab liioi with their bayo- 
rdbvhim down to the said dungeon, 
thcCSimig Room ; the latter of which 
tiiyM,iBd Bambridge kept him confine<l in 
iMvpandloithsoroe place, till he had lost 
WPMffhiilimbs and memory, neither of 
jlttkH he perfectly recovered to this day. 
flmnnviting cruelties were used to make 
fMMMmntmdre terrible ; and when Bam- 

aimid he was in danger of immediate 
he rmioved him, for fear of his dy in^^ in 
"ti caused him to be carrieil in a dying 
ifron that dnngeon to a room where 
IKIM no bed or furniture ; and so unmer- 
4H^ fRvnted his friends having any access 
jbKji, thit be was four days without the least 




^iffved to the Committee by the evidence 
.nMfND and others, who were prisoners in 

ebiK,tbat when captain Sinclair was forced 
AMhstbeome dungeon he was in perfect 



j^nSnclair applied for remedy at law 
It 



the said cruelties of Bambridge, and 
MpKarerf a Habeas Corpus fur bis witnesses 
jifcih wght before the sessions of Oyer and 
"■^i when the said Bambridge, by cohiur 
',UitiRnned authoiity as warden, took the 
■■eriii of Habeas Corpus from the officer 
•■"■Joty h was to make a return of them, 
■jMntnanded him to keep out of the way, 
J^tbebiroself went to the Old Bailey, and 
iJ^A^y indicted captain Sinclair and such 
*|il vitoesies as he knew he could not deter 
P>*BtVi or prevail with by promises to go 
^Aetnith. 

JtMP Sinclair had temper enough to bear 
^■Hljr almost insupportable injuries, and to 
^^ himself for a proper occasion, when 



prisoners, if they survive his inhuman tieat- 



mciit, hut he seems to ha>e a f.trther \icw, in 
case it eausui ilentii, of possessiiip^ himself of 
their eflVets. One rv'mnrkabic juouf of which 
the Cunimittre think prnper here to inseit, viz. 

Mr. John Holder, a ^;'paMish merchant, was 
^^ - ~.^^,. .w. wm w.<^|^. w^^«».w.., .. ..w a prisoner iu tlu^ Fleet, nml had a room uhich 
Meihoukl be done nim by the laws of the he fitted up wi'.ii his own t'urniture, and had 

with him all \\\s bof)ks, aceounts and writiii^^ 
and otljer riVi rJs, to the value dfab >ut 30,0()0/. 
whicii he ('eclarcd by ailMiiivit, upon the fol- 
lowing oecasiMu : 

The baid Thomas Banjbrid^e, by foroe, 
turned tliesp.id Mr. Holiler (»vcr to the common 
side, and took possession of his room, in whicli 
all his cilects were. 

Mr. Holder remonstrated stronijly against 
this usage, and Bambridge refu^in^j^ to restore 
him to his room, or possession of !iis eflects, }'^ 
made a proptr atadavil m otA*»^ \cv ^VV^^ ^'*' 
X 



. ta the said Bambridge ha« forced others 
VVfiogs and injuries beyond human bear- 
Hi i^ endeavour the avenging injuries and 
^P^vioiis which they could no longer endure. 
^Ji' it appeared to the Committee, that the 
*'BMBbridge, in order to avoid the punish - 
^ dae to these crimes, hath committed 
ptTf vid hath not only denied admittance to 
wiificitori, who might procure justice to the 
^^ prisoners, and in open defiance to the 
■*! tebeyed the king's writs, but hath also 
VOL XVII. 



307] 



3 GEORGE II. Proceedings in the House of ConimunSj SfC» 



jiidj^es for relief, and declared that be feared 
his eflects ini^ht be embezzled whilst he was 
thus unjustly forced irom theai, and that he 
feared Bainbriiige's cruel treatment of him 
would be the cause of his death : the miseries 
of the common side, which he dreaded, had 
such an eHTcet upon him (being a man of 
an advanced age, and accustomed to live in 
ease and plenty,) that it threw him iuto such a 
fit of sickness as made his Hfe despaired of, and 
io his illness he often declared, " That the vil- 
lain Bambridge would be the occasion of his 
death." Which proved true; for liambridge 
finding Mr. Holder like to die in the duress 
which he liad put him into, (for his own sake, 
to avoid the punishment inflicted by law upon 
gaolers who so inhumanly destroy their pri- 
soners) permitted him to be carried back to his 
room, where in a few days he died of the said 
sickness, contracted by the said forcible re- 
moval of him to the common side by Barn- 
bridge, as aforesaid. 

Air. Holder by his last will appointed mnjor 
Wilson and Mr. J;ohn Pigott trustees for his 
son, a youth of about 13 years of age, who had 
accompanied hiiu in the time of nis contine- 
meot. 

This young gentleman, aApr bis father's 
death, locked up his eflects in several trunks 
and boxes, and delivered the keys thereof to 
Mr. Pigott as his trustee, who locked up the 
room and took the key with him : but the said 
Thomas Bambridge caused the said room to be 
broke opeu by Thomas King, anotlier of his 
accomplices, and caused the said effects to be 
seized, after that he, Bambridge, had forced 
Mr. Pigott out of the prison, (though a prisoner 
in execution) and locKcd down major Wilson 
(the other trustee) in the dungeon, to prevent 
their taking any inventory in behalf of Uie heir 
at law, then an orphan. 

These evil praclicus of letting out prisoners, 
extorting exorbitant fees, sufleriug escapes, and 
exercisingall sortsof inhumanity for gain,maiy io 
a great measure be imputed to the venality of'the 
warden's oflice ; for the warden who buys the 
privilege of punishing others, does consequently 
sell his forbearance at high rates, and repair his 
own charge and loss at the wretched expencc 
of the ease and quiet of the miserable objects in 
his custody. 

Upon the whole matter Uie Committee came 
to the following liesolutiuns, viz. 

Resolved, That it appears to this Committee, 
tliat Thomas Barobri<W, the acting warden of 
the prison of the Fleet, nath wilfully permitted 
several debtors to the crown in great suras of 
roone}', as well as debtors to divers of his ma- 
jesty's subjects, to escape; hath been guilty of 
the most notorious breaches of his trust, great 
extortions, and the highest crimes and misde- 
meanors in the execution of his said office; 
and hath arbitrarily and unlawfully loaded with 
irons, put into dungeons, and destroyed pri- 
soners for debt under his charge, treating them 
in the most barbarous and cruel manner, io 



high violation and contempt of the laws • 
kiugtium. 

Resolved, That it appears to this Comi 
that John Huggins, esq. late warden < 
prison of the I*leet, did, during the time 
wardenship, wilfully permit many consid 
debtors in his custody to esca|>e, and w 
torioosly guilty of groat breaches of his 
extortions, cruelties, and other high c 
and misdemeanors in the execution of hi 
office, to the great oppression and ruin of 
of the subjects of this kingdom. 

The Resolutions of the Committee beii 
verally read a second time, were, upon the 
tion severally put thereupon, agreed ui 
the House, and are as follow, viz. 

Resolved, nem, con. That Thomas 
bridge, the acting warden of the prison < 
Fleet, hath wilfully permitted several d 
to the crown in great sums of money, ai 
as debtoi-s to divers of his majesty's subje 
escape ; bath been guilty of the most not 
breaches of his trust, great extortions, ai 
highest crimes and misdemeanors in the 
cntion of his said ofiic£ : and hath arbit 
and unlawfully loaded with irons, put int( 
geons, and destroyed prisoners for debt 
his charge, treating them in the most barl 
and cruel manner, in hip^h violation ant 
tempt of the laws of this kingdom. 

Resolved, nem. con. That John Hui 
esq. late warden of the prison of the Flee 
during the time of his wardenship, wi 
permit many considerable debtors, in his 
tody, to escape ; and was notoriously gui 
great breaches of his trust, extortions, < 
ties, and other high crimes and misdeinc 
in the execution of his said oifice, to the 
oppression and ruin of many of the subjc 
this kingdom. 

Resolved, That it appears to this 11 
That James Barnes was an agent of, ai 
accomplice with the said Tikoinas Bamt 
in the commission of his said crinu's. 

Resolved, That it ap|>ears to this II 
that William Pindar was an agent of, ai 
acc<impltce with the said Thomas Bauil 
in the commission of his said crimes. 

iiesolved. That it appears tu this 11 
that John Evcrt'tt was an anient of, an 
accomplice with the said Thoaias BamL 
in the commission of bis said crimes. 

Res'jlved, That it appears to this 11 
that Thomas King was an a^rf^Qt of, ai 
accomplice xi itii the said Tliunias Banifa 
in the commission of his said crimes. 

Resolved, tiem. can. That nii humhh 
dress be presented to his majesty that be 
be graciously plfased to direct' his attoi 
general forthwith to prosecute, in the 
effectual manner, the said Thomas Bamb 
for his said crimes. 

Resolved, nem. con. That an humble 
dress be presented to his majc-stv ilnii hi 
be graciously pleased to direct bis attoi 
geucral foruiwith to prosccutei in Ui« 



309] 



Trial nfJohn Htiggim. 



A. D. n2<>. 



[310 



■ffflclml mtDner, the said John Hugvius for 
a:4 cnincs. 

Rnolredy That an humble aiMress be pre- 
KMr^ to hm mHJcstv that be will be ^raciuusly 
pl tti fd to direct liis attomry-f|;eneral forth- 
with 10 pr09t!cute, iotbe ODost c flertiinl manner, 
ihcuid James Barnes, William Piniiar, John 
IwMI, and Thomas King, for their said 



€Msed, That ttie said Thomas Dambridjcfe 
It SHunitted close prisoner m his niaiesty's 
!■( af Newgate, and that Mr. Speaker do 
■H bis warrants acroriiin&^ly. 

Mrrrd, That the said John Hugrgins, esq. 
Iresninitted close prisoner to his maitntjr's 
p«l of Newgate, and that Mr. Speaker do 
■SK his warrants according! 3' . 

Oirdered, That the said James Barnes be 
csanitled close prisoner to his majesty's gaol 
•TNevsmte, and that Mr. Speaker do issue his 
vmiBla accordinglv. 

Oidcred, That the said William Pindar be 
t— miued dose prisoner to his majesty's gaol 
tf Newgate, ami that Mr. Hfieaker do issue his 
vmants accordingly.* 

Oidered, That the said John Everett be 
■■■itted dose prisoner to his majesty's gaol 
tf Vrwgate, and that Mr. Speaker do issue his 
■euordingly. 



Ordered, That the said Thomas King be 
committed dose prisouer to his majesty's (^ol 
of Newgate, and that Mr. Speaker do issue 
his warrants accordini^ty. 

Ordercil, firm. con. That leave l»e given to 
bring in a Bill to diMilde the said Thomas 
Bam bridge to hold or execute the otHce of 
warden of the prison of the Fleet, or to have 
or exercise any authority rdating thereto ; 
and that Mr. 0(;lethnri>e, Mi*. Earl, the loni 
Percivall, and Mr. Hughes do prepare and 
bring in the same.* 

Ordered, nem. con. That lea?e be given to 
bring in a Bill for better regulating the prison: 
of the Fleet, and for more effectual i^event- 
tng and punishing arbitrary and illegal prac- 
tices of the wanlen of the said prison ; and 
that Mr. Oglethorpe, Mr. Cornwall, Mr. Glan- 
▼ille, and Mr. Hughes do prepare and bring in 
the same. 

Which Bills passed into a law. 

They also enquire«l into the state and coddi- 
tion ot the Marshalsea prison, and ordered a 
prosecution against William Acton for murder. 
See the fdlowing Cases. 

* As to some of the proceedings hereupon, 
see 4 Haiseli's Precedents, title Iropeachment, 
chap. 3. 



479. Tlie Trial of John Huggins,* esq. Warden of the Fleet Prison, 
for the Murder of Edward Arne, at the Sessions-House in 
the Old- Bailey, May 21, before Mr. Justice Page, Mr. Baron 
Carter, and others his Majesty's Justices : 3 Gjeokge IL a. d. 
1729.t 



Tuetday^ May 20, 1729. 

Proclamation was made for all persons cou- 
CRBcd to attend. 

CL nf Arr, \ OU good men, that are im- 
yi a ael l c d to enquire, &c. answer to your names, 
ladsafe your tines. John Huggins, hold up 
%hand. (Which he did.) 

CUrk, Thou standest indicted hy the name 
•f Jeba Huggins, esq. warden of the Fleet, Aec. 
[The Indictment being inserted with the Spe- 
ciii Verdict at the end of tliis Trial, is omitted 
^.] How sayest thou, John Huggins, art 

• See Fitz^ib. 177. 1 Barn. 358, 396. S 
^ 882. S liord Raym. 1574. East's Pleas 
■f the Crown, chap. 5, § 92. See, too, 8 Term 
Bip. 457, and the Cases which follow this Ar- 
tde. tier, too, 3 P. Wms. 494. 

t These Trials 



of Huggins, Bamhridge and | i^^" ™rown, 
were all taken in shirt- hand by Mr. P«t« Sujoumey, 
I to the Committee api^nted T°^™r.P'^' 



like BkCDD, (Clerk to the Committee appointed 
kcoqmre into the gaols of the Fleet, Narshal- 
■a, 4w.) who in nis life-time asked 200/. for 
it csyy ofthea. jForawr JBtfi^ioii. 



thou guilty of the felony and murder whereof 
thou stamiest indicted, or Not Guilty. 

Huggins. Not Guilty. 

Clerk. How wilt thou be tried ? 

Huggins. By Gi>d and my country. 

Clerk, God send thee a good deliverance. 

Wednesday f May 21. 

Proclamation was made for information. 

Clitk. Thou the prisoner at the bar, these 
men that thou shah hear called, and personally 
appear, are to pass bet^reen our sovereign lord 
the king and thee, upon the trial of th}' lite and 
death; therefore, if thou wilt cballeuge them, 
or any of them, thy time to speak is as they 
come "^ to the book to be sworn, before they are 
sworn. 

Jury. 

Philip Frusliard, Thomas Clayton, 

John Hoar, 
Martin Wardell, 
Richard Pitt, 
John Milward, John Price, 

Daniel Town, James King, 

Clerk. John Uuggitis, bold up thy hind. 



311] 3 GEORGE n. 

OVhich he did.) Yoo of the jury look upon 
the prisoner (and was goings on.) 

Muggins, M V lord, the disUoce is too ^^reat 
to be hf ard : 1 desire I may come to the inner 
bar; for, rov lord, when any niGonTenieuce 
happens, it is the constant rule to admit the 
prisoner to come there : it was done in the Case 
of Sanders and Clifton. • 

Mr. Just. Jfage. Whenever the Court con- 
cei?GS an inconvenience, it has been allowed : 
but I csDiiot allow it till then. 

Clerk. You trentleinen of the jury look upon 
the prisoner; he stands indicted by the name 
of, &c. 

Prout the Indictment muta^u mutandii, 

Huggim. 1 must desire, mv lord, to have 
the indictment read in Latin. (VVhich was ac- 
oonlingly done.)* 

Mr. Holland. (Member of parliament for 
Chippenham.) My lord, and you ^ntleroen 
of the jury, I am of counsel for the kingf ; and 
this is an indictment against John Huggins, for 
aiding and abetting James Barnes in the mur- 
der of Edward Arne ; that John Huggins was 
warden, and one James Pames was then his 
agent, who did in November, in thf 11th year 
or his late majesty, make an assault upou Ed- 
ward Arne, and took Arne involuntarily, and 
confined him in the strong room (without the 
eoiofort of lire, olose-stool, or other utensil), 
built near the place where excrt*ments are 
thrown out, a place very unwholesome, and 
most dangerous to the health ; that Arne fell 
sick in the said room, and languished till the 
7th of December, and then dieil; that Hug- 
giuR, through l)i« cruel dis|K)sition, l»eing an 
opjir(>t»sor of' the prisoners, di.l, &c. 

8crj. Ches/iitc. My lord, and you gentlemen 
of the jury, James Barnes, who stands indicted 
for the murder of £ilward Arne, is tied from 
justice ; anil John Hoggins the prisoner at the 
liar, also btoiids indicted for aiding and abetting 
in the said fact. He was then warden of the 
Fleet, and had the custody and care of the pri- 
soners then committed to his charge ; there- 
fore it will be necessary to let you know what 
bounds the law sets to gaolers, and In prisoners. 
The law sets fences to them both: the gaoler 
is to be protected in his duty, supported and 
niaintained in it; and it is juitifiable, if, in de- 
fence of himself, he destroys a luaii, and com- 
mits an act of felony : on t'iie other hand, if by 
any unnecessary tyranny, or restraint, any of 
the prisoners come by u*n uniiriiely death, it is 
murder in the gaoler ; and this lost is princi- 
pallv nccesHary for your attention. 

F^duard Arne, on the 12th of May, ir25, 
wa'i committed upon mesne process; he was 
a quiet, peact'sihle, and inuflPi-nsive man, and 
coutiuued i;o till Septeml^er in that year, ihe 
gcntlrinan at the bar, not com ent with 'iii' tuMne 
Kccurity that his predtcrssors hud, took it in his 
bead to innke a strong room, which was built 
about three months before the death ot Edward 



Trial of John Huggins^ 



[312 



* See A Note, i A foi. 19, p. 1998. 



Arne ; it was like a vaolt, boiU Of«r the oon- 
mon sewer, near a kiystall, where the filthy 
matter was lodged, nothing but bridDi and 
mortar, not tiled or pointed ; and in thia ooe* 
dition, about September, one Barnce, aervaat 
of the defendant, came to the said Arne, M ha 
was sitting in the cellar, rushed upon hioa, aid 
took him away to the dungeon, a place v^bcM 
nobody had been put in before; in this nii 
place of restraint he was confined, though l» 
was in a quiet condition : there was no fire» mm 
flre-place, no light but through a hole ever the 
door, and a little hole by the aide, big eoeadi 
to put a quart pot in at ; there waa not Im 
want only of fire, or fire place, but there mm 
no chamber-not, no convenience for the eMa af 
nature, so. that it roust fall, and be convene 
with it : the place was so moist, that dropa qf 
wet ran down the wall The roan immediaisly 
lost his voice, his thn»at was swelled, and hm 
clothes rotted with the dampneas of the placi^ 
and the poor man, huving a feather -bed, 
into it, and the feathers stuck ckiae to bin., ( 
in this condition he lay; but one day, the 
being open, he got out, and ran into the 
mon hall ; he looked, gentlemen, mecc like n 
feathered fowl, than an human creatare. Thii 
waa represented to Mr. Hoggins, who gene^ 
rally Uved in the country, and did net oome li 
the gaol so often as he ought ; but at one tiiB% 
when he was at the prison, he aaw tbe HMjk 
and the poor man just saw him, his eye fal( 
the door was cloi>eil, and he died : the wsidi^ 
gentlemen, bad the door shut, and ordered him 
to be lucked up, and he continued so locked m 
from September till the 80th of October; aai 
it is wonderful to think (if he had not been n 
man of a very strong frame) how he cookl have 
continued there so I'-ng. It moved the eeen- 
passion of his fellow- prisoners, who applied la 
have him released out of that place, but that 
not being done, a little care was taken toatp 
tend him. Gentlemen, at the time when Mr. 
Gybbon was deputy, some of the priaonen 
askefl him, Why he did not take care ot' Arne, 
fertile man cannot speak? And anawer waf 
made by Barnes, Let hint die and be damned ; 
and this was in the prcsent*e of the warden* 
Gentlemen, 1 must observi. lo you. that for ee- 
cnrity of the lives of prisnuers, the corooer^ 
inquest ought to sit upon ihem, to see if may 
marks c<HiTd be found to give an inforniatioa u 
the cause of death, but this was not done: ibia 
is the tiubstance of the evidence, which cnnnaC 
be aggravate<l. 

Ait. Gen. (sir Philip Yorke, afWrwarda ceil 
of Hardwick and lyird Chancellor). My lord, 
and you i;ent!enwn of the jury, I am ot coun- 
sel for the king, and this proseGuti<>n is the 
cfftfCt of a useful, compassionate enquiry ooo- 
cerning the gaols, so it was found nccesaery 
to bring the cause liefore you, that gaolers OMy 
be punished, who have 0|i|M>riunity, and bevn 
endeavoured to oppresa the imfortuuaie 
■iider their charge and |»ower. It ia 
there ahonld be gaols awl prisons, and that 
aona should be under confinement i but mtitm 

1 



1] for the Murder of Edward Arne. 

■riaNlHK ii io tlidr power to CMnmii op- 
Hl^ IMBWtulcruclliea, Io the kai of tfaa livu 



A. D. 1199. 



tSM 



WH Aitv*. Al thM time e* cd tbs prwoner niv 
him laQgnuh ; hit speech wu lout, nod tfaea 
b« Ungublied, and cuaunued ia Ihe duDgeon 
till tbt: time «f bis deatli ; thu will app«tr 
cltfviy by tbe eTidence, (bit Le dieri in duraw, 
aud ibat the di4tein|tcr (here coatracted wa* 
ibe OGcaaion of hii death. The next eonai- 
deraiiuD ia, who, and what was lUe occaiion of 
hit death ; it it the doty of ths gaoler to ban 
a coroner's iuquett la oof uire into tlie death t£ 
a pritnaer, foT hit own justili cation, who, hy 
haTing' tiie cududv or, and the ttower ajet kw 
priMDen, nay deatmy tlieia ; ttietefore, if 
there was do particular reanoa, why thould it 
Dot Itavfl beea done? Though he raaaot pi«- 
Icud to thew a (larticular onler why be did not. 
When I OMiaider, that uotbinif cguld badOM 
but by his authority, DOtbing dune but by bia 
direction, tLit wan bis (Mriicular ordar. 

If b" wbu was Ibe |irinci|ial gaoler, wh» 
bad tlie authority to coofioe oiio, and ia dii- 
charge bim froui an iinprojier coDfiuenenl, wb* 
saw him there did not relesK bim, but iiMlMd 



imbhie brick and nortar: opan wkat diet in duress of the t^auler by bard enpflw-. 
MMIailaNluiJl, tbf prisuBcr will gireyou menl, in • cruel mannvr, uaueeesaary to (ba 
■i^RM. it lie liBil Buy autbaritjr for bjild- gauter'i safe caWody, it is death by la* ; if lb* 
■i Otin^ are lu take care ol prisoaera, gnoler ia not aosnerable fur tliw act, wbal 
■■■■•iKiUdaii&t^iiB 10 putlbcm in; tbe needii the dead pMWJOt Io be enquired after by 
*fc *«" ou lit}, bui Tcrydsmp and no- i ajuryf Justice ouiflil be d'loe, iel it fall ob 
^^■Mt, «> uiually sneh placet oiusi he. wlioinil will; aud I do not doubt, botthajurf, 
wlititticiriihtamling in ibe cellar iiMfeii' I for Ihevakeol'lheir oalbs, will liud liiin ifuiky. 
Wf, Stnn, wlia was eutriiKcd with the Sol. Gea. (Hou. Hr. Talbot, alUrwank k 
■Mlfltf |irisi)net«, Bei/eil him and p«l him Peer and I»rd Chapcellor.) We will call sor 
■Mfln, ind he wasihprepiitwitliont any etideucrto proie the facta. 
^Wifpmigiaii la sHKiain life; there w 



ce of the alBiott op- 

tt cruelty. Hr. Hug- 

_.._ Fleet prison, and had 

cuHaJy of the priaonen, and 

Ml^paull), nr by liis deputy, to take 

■ MpiB, >iiiiu is answerable' for tbem : 

~ "' ' itiie came a priaoner io May 

iauad ibere lilt he died. At bis 

I, be liKlged Willi -one Bcbcrt 

f difference bappeniug betweeu 

tek Ku uiiiKd out of that room, and Iaj 

. aditniuiiiialitll. This nabappy raao wsa 

I alakiLHilKnt ia bii aeuacs, which his 

■■I al|;lil reisanohlv oeoaaion ; be was 

fuiet oMu ; nt about tbis lime, 

t* jjchetiie of baTioe a pritou 

.■hub » as the ooeaaMH) ofibeir 

f op^rmioae u|>oii ibe prisoaera. 

inaninas tbeoereotcdin (ha dud- 

ftniih, cominouly called 



iMiblc w],fre yoo niiKbt put a liule driok 
ifltHUKs III' bail an opportunity uf 
It. ami wiiiieliaiea nooe. Undi;r this 
111 |ieraii> u»s krpt, without any 
Mo p.a!<r nature; thedescri^ou it 
iiu more evtry Irady to cnmpaHainn. 
•l[u<:eoil lu w iih him, and he ripped 
crfpi lotu il lo keep himself H-arin, 

litrssiiji'k to hia:i by reason of his 

•*f bnm^ar^ wiUi bin own ordure, which 
■W Ml a|i|>OTliiiiiiv of dnjfl|[ out of llie 
m- Dunau ilii- uliule time whilat Arne wih 
*bal, Mr, llii^rgius, wlio was then narili'n, 
[ «t »>«, ihou^b be ought to bate corae 
'■B'laadbis duly retjuirel him so In do : 
vSoggins looked upon him thete, aodaaw 
Wtia tbai ooodiiion, io tbe place built by 
■tvs order; but the priaoner, ao far fram 

RUflt any relief, or maoriog him out of 
afiacmeiit, orilered llie door to be locked 
f ■ kta prcBotce, be being warden, aud by 
aaalborily. Tliit affectiog cnudilion tiie 
WMaa wa« in, aud Jn tbe ciiwaraitaikce be 
■sia, he augbt to hate rdierod bim. tie- 
•danbcMiant were made to Gybbon, and 
kvifaaaersaat* uf tlte warden, tu desre this 
t^ifiy man to be releaaed i lellu:s were sent 
Mw bianiaeraUe cmtdition, that he vat 
I likely to live, and to desire that he mi^lu 
tm atitt m futyar «urta|lj j but aalbtng 



Call Richard Longbom. (Who wat awoni, aa 
were all ibe rest that appeared.} 

He produced a copy of Mr. Huggiot'a 
patent, brarin)^ dale the S2d July, the 19lh 
queen Aon, wlucb U^ proved to be u true oo|)y, 
and Mich part of it wat raad as prored him to 
be warden. 

Huggint. Uy lord, I desire the Habendum 
may be rtad. by which I hare a power to ap- 
poiut a deputy or depuliea for and durjug inj 
oat oral life. 

Mr. Just. Page. I don't know what use yon 
will make of it; but you may call fur it ia 
yourdetieDce. 

JUAert Bigrave awom. 

Sol, Gtn. Do you know ibe prisonCTf 

Btermc. Vpry well, 

Sol. Gtn. Uuw loagbareyOD known hittf 

Bigravt. I knew him when J waaCkrkof 
the faiiarB, in April 17S5. 

Sot. Gen. Did he aci i 

Bigratie. lis was warden, but did BOtact; 
Mr. GybbcD was deputy lo .Mr, Huugiiu. 

Sot. Gen. Who conalituted you Ckrli ofliia 
PajwrsP — Bifirave. Mr. Hugf^nt. 

Sol. Gtn. Were Ibr securities tsken ia tba 
aaiue of ftlr. HuggiusP 

Bigrave. The security booda were taken, 
and returns madeiu tbe Dame of Hr.Uo^ 



1.4. 



r -■•■^ 



-- -^- *'»2 



■ ■ 1 



«Z" . 



1/'. 



•#•■ _ 



-- >* 



I I 

M 



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« — — - 



Ff> 



I • • ,1 •'> n •f.fi 



I 



' ' ,• i - -- ^ -IS ▼ -~- 1 

. »'. * .! I* --■-■■ - '.--•:•*. 'Mis -■ 

■ ' " !»•:*■ •..- . ni": ; n 

■- -. • ■»' « \ Jt- z '• '- '■'■ •-'•' :•■■•- ': . ;- 

•• • •/ ■»■•.•' i •»<:.■■»-■ ■. 5 . 'i- -—^ 

V v^/ »«■» ; i** ■ I.*-* * A ••--•; • 

."* . ».' : ;.'«^ Vi Mr 'rf-.w:-.. u;. 

»•'• ;»• -f'. .•^r i«»n .'•%t<'1 t** I 

■ 

thff"* '1 tin wurrrkiitH were gene! 



Jiit the Murder ofEdtioard Arne. 



▲. D. 1729. 



[318 



office, aod signed and gealed in 
Lbey were filled up by Mr. Oyl>bou, 
lod sealed by Mr. ilu^gins. 

. Id whose name were the war- 
led? 

The warrants were returned in the 
!r. iluggins, but by the direction of 

D. 

. Was Barnes my servant or Mr. 
He was allowed to be a servant to 

D. ' 

ke Page. I will ask a question 

. 1 must beg^ leave, my lord, to 
lestion more, and then will make 
rations upon the evidence. 
,ce Page, It is not proper to break 
\ evidence to make any observa- 

. This is the grand point. 
ice Page, Whetlier it is or no, that 
mod. If you insist u|)on makinfi^ 
kfl now you shall ; bin I think it 
yom: prejudice, tor by that you will 
d from making your remarks upon 
' the evidence. 

. My lord, 1 will then submit. 
ice Page. If you will ask Mr. Bi- 
Dore questions, you may proceed. 
. Did you hear of any ill-usage from 
oan (meaning Mr. Arne) P 

I remember Mr. Arne was there, 
lew no such man, and heard he was 
groom. 

. Did you hear of any alteration 
ade in the strong room while Mr. 
lere? 

I never heard of any alteration 
time. 

, Did not Gybbon keep two distinct 
le and the same hutise ? 

in the ycnr 1725 he did. 
I. . Pray distinguish nicely as to 
ggins, and Gybbon, whether Barnes 
»loyed as watchman while Huggins 
il, and Gibbon deputy- warden;' 

lie was. 

, Who put you into your office? 
Sir. Uuggins put me into the 

1 made an agreement, and was to 
il me out of each day -rule. 

D Carter, Who made the agree- 

I made the acfreemcnt with Mr. 
id paid 700/. to Mr. iluggins and 
I. 

D Carter, Who put 3Ir. Barnes in ? 
Blr. Gybbon. 

B Carter, fiow do you know f 
1 beard so. 

CSall Richard Bishop. 

Wlial arc vou ? 

was tipstaff to Mr. Hucfgins, pre- 
HMpm came to his utfice, and 
ll.lSrit. . 



Sol. Gen, Who was deputy then? 

Bishop. There was no deputy- warden, only 
Mr. Dickson, Clerk of the Papers. 

Sol. Gen, When did Gybbon come there f 

Bithop, In the year4724. 

Sol, Gen. What time did Arne become a 
prisoner ? 

Bishop. In 1724 or 1725, T brought him 
down from the judges chambers, and put him 
at the Vine as usual. 

Sol, Gen. Why did 3'ou not bring him into 
the prison ? 

Bishop, Because he thought to give se- 
curity. 

Sol. Gen. Was not that a spunging- bouse? 

Bishop. Yes. 

Sol. Gen, How long did he continue there ? 

Bishop, About two months. 

Sol. Gen, Where did he lie, when he went 
into the gaol ? 

Bishop. When he went into the gaol, 1 did 
not trouble myself about it. 

Sol, GcH. Do you remember the building 
the strong room ? 

Bishop, I do remember its being built in 
1725. 

Sol. Gen, What sort of a place is it? 

Bishop, 1 have seen the outside, but n<sver 
saw the inside; 1 believe it is built over the 
common-sewer, and but a little way from the 
dunghill; the ashes and dirt of the boose is 
flung down there. 

Sol, Gen. Did you see Mr. Arne there ? 

Bishop, I saw him once in the long room 
out of his clothes, before he was brought into 
the strong room, and I complained to Mr. 
Gybbon, and said he ought to be sent to Beth« 
lem, but he put him in the strong room. 

Sol. Gen. Can you tell of any complaints 
made about Ame's being put there ? 

Bishop. I did apply to Mr. Gybbon, and said 
it was better to keep him in his own room, ^or 
if a wise man was put there it would make 
him mad ; and it would have made me mad if 
I had been put there myself; and i heard Mr. 
Gybbon speak to Mr. Hopkins to acquaint Mr. 
Huggins, that as Mr. Taylor was one of the 
governors of Bethleni, and Mr. Hu|;gins's 
friend and acquaintance, he might easdy gft 
him in there. 

Huggins, It was no part of the office of 
warden of the Fleet ; but 1 might, by a friendly 
office, use my interest with Mr. Taylor, and 
that would shew me more a humane man, than 
one guilty of cruelty. 

Sol. Gen. Did you see Mr. Huggins in the 
gaol, during the time Mr. Arne was in the 
strong room ? 

Bishop. 1 saw Mr. Huggins there several 
times, but can't say whether then or not when 
Mr. Arne was in the strong room. 

Sol. Gen. Was he any way abusive ? 

Bishop. 1 never heard that Arne was any 
way abusive, or needed any such restraint. 

Sol. Gen. What was James Barnes ? 

Bishop. He was to take up people that the 
wardeu directed him to take up, and acted .as 



319] 



S OEORGB IL 



watchniaD in thei^, and wm lerruit ttiMler 
the warden. 

Sol. Gen, What time waa Arne pat id the 
strong room ? 

Buhop. lie came into the priaoD before the 
alroog room waa bailt. 

Soi. Gen, Do you remember when it waa 
bnitt^ 

BUhop. It waa built in 1795, 1 belieTeatthe 
latter part uf the summer season. 

M, Gen, Do you remember the time while 
Ame waa there? — Bishop, I do. 

Sol, Gen. Waa there any thing of eonse- 
quence done in the gaol, without the direction 
of Mr. HugginsP 

Bishop, Nothing of couseqnence was done 
without bia direction ; but the common busi- 
ness of the gaol waa done by Mr. Gybbon's 
direction. 

Sol. Gen* Did you ever speak to Mr. Hug- 
gins in relation to Arne's confinement ? 

Bishop, 1 believe I might speak to Mr. 
Gybbon, and 1 beliere I might speak to Mr. 
Huggioa, for 1 frequently did speak to him 
about business. 

Sol, Gen, What condition was Mr. Ame in, 
when brought to the Fleet f 

Bishep, I think he was in his senses, he was 
inoffensive, and I think there wss no occasion 
to confine htm ; I saw him several limes walk- 
ing about the yard, and if he had been confined 
to his own room anv-body might have looked 
after him, even if it nad been a child. 

Ss/. Gen, Had be any bed whilst in the 
Strang room? 

Bishop, I think he had no bed there, it was 
a dark place, I could not see into it. 

Sol. Gen, Did Hug^ins use to come there 
after Gybbon was deputy ? 

Bishop. I saw Mr. Huggins there several 
times afcer Mr. Gybbon was deputy- warden, 
and Huggins used to give directions, during 
the time Gybbon was his deputy, and Hop- 
kins used to bring orders to Mr. Gybbon from 
Mr. Huggins. 

Sol. Gen, In what condition of health was 
Mr. Arne when he was brought in P 

Bishop. He was in a good condition of 
N kealth, and in his senses ; ami I believe, lieing 
put in the strong room in the Fleet, would have 
killed sny-body, and thai iliat forwanled Arne's 
death, and he would not have died so soon if 
lie had not been there. 

Huggins. When von Rpoke to Mr. GyNion 
to apply to me to make intei-est to the governor 
of Bethlera, whether it was guatenus wardrn, 
or only as I was supposied tu have acquaint- 
ance or interest ? 

Bishop. It was l» apply to you as warden. 

Huggins. Were there not women prisoners, 
and meu's wives in ttie gaol ? — Bishop. Yes. 

Huggins, My lord, it was very unfit for a 
maa to go naked about where* there were 
women, and it waa §1 lie aliould be con* 
Ased somewhere. Whose aervant was JanKs 
Baraca? 

Biaktj^. Mr. Ojkbaii*a. 



Trial of John Huggins^ 

Mr. Justice Page. At the time when 
about naked, was there no other room 
could have been put in ? 

Bishop. There certainly were oChe 
where be mifi^lit have i»een put. 

Mr. Justice Page. How often have 3 
him naked ? 

Bishop. 1 saw him naked but once. 

Mr. Btfron Carter, You said Gybb 
some directions, and Huggins gave 1 
rections; now during the time that 
acted, did the prisoner, Mr. Huggins. | 
directions as to the m(»ving of prisonen 

Bishop. My lord, I never meddled w 
was done in the inside of tlie prison, 
inform yon. 

Call Mr. John Cotton. 

At I. Gen. What ofiicer are you b< 
to the Fleet?— Co^^ora. Clerk ot the ¥ 

Alt, Gen, Pray see what time A 
committed ? 

Cotton, He was committed the 13th 
1725> at the suit of John Martin am 
upon mesne process. 

Huggins, I desire he may see, whei 
bec:ime a prisoner P — Cotton. In Hilar 

Att, Gen, Is not Barnes still a priisc 
what is beoome of him P 

Cotton. He was a prisoner, and 
liberty of the gate; and when the ord 
House of Commons came for taking 
custody, be ran away, and Corbet ha 
voured to find him out, but could not. 

Att. Gen. Was Arne charged in ex 

Cotton. No, he was not. 

Call Mr. Thomas Farrington. 

Aft. Gen, Did you know Edward ^ 

Farrington, I did, and the first timt! 
came into the prison, it was l>etween 
and 28th of June, 1725. He was sc 
at the V^ine before. 

Att. Gen, What state of health was 

FaYrington, When he cnme into 1 
prison he was in a gotxl state of he 
tree from any sort of dclirioiisness, am 
sa^ him do any ihiug amiss to man, 
or cliild. 

Ait Gen. Do you remember his be 
finetl in the strong n>om P 

Farrington. 1 do remember Ins be 
fined in September, and that he died in 

Alt. Gen. When was the first t 
knew of his contineinent ? 

Farrington. The first time I ever 
his being confined, I heard he was ca 
the strong room by Barnes, by the din 
Gibbon, dc|»iity- warden to the prisot: 
bar, and he had lain bel'ure that in n 
with Kul>ert Shaw, and upon some di 
being turneil out of that room, he th 
the common -hall. U|»on a bed of I 
which he laid upon part of a broks 
bedstead. 

Att, Gen. Wlien was tbe first liiM 
Ame in the strong rooss f 



»l] 



Jor the Murder of Edward Arne. 



A. D« 1729. 



[S2S 



1. I Htw him the very day he was 
pstio. 
Att. Gen. What sort of a place is it? 
Furington. It is a room arched o?er liJce a 
nuh, aDil bad been new erected about six 
vedu, and the walls were very damp and wet ; 
jta ught strike off the drops with your hand 
Hc lbs dew on the top of the fgnms in a morn- 
ing; ibere was no wainscot nor plastering, 
Ikytvm some boards at the bottom, but wbe- 
Ihv oiirely boarded I can't tell. It was a 
nrilaidied over, and when Ame was carried 
hMiilBd; there was a window over the door 
llm^rters of a yard long, and another on 
ikaie of the door seven or dght inches long, 
mihm wide, and no fire- place, and the com- 
Ms-Kwer runs under it. 
Alt. Gen. Wliosupplie<l him with victuals ? 
fvringion. I saw Mr. Louden give him 



Att. Gen. Who kept the key of the room ? 

Icrrington. Barnes. 

Att. Gen. From the time that Mr. Ame 
■winlfi the prison, which was between the 
lOlkftBrf V8th of June, till he was put in the 
rotini, what state of health was he in ? 

Immgton. Ue continued in a good state of 
till a little before he was put in the 
room, and then he grew somewhat dis- 
; ami from the time he was put in the 
roam he altered every da v, grew hoarse, 
mi atltiteould not speak, and he grew weaker 
id vtakcr every day ; about the beginning of 
Offcerbe hwt bis voice, he grew then delirious, 
ttinpl o|ieD his bed, and crept into the fea- 
tbm, lod fine day came to the chapel with ex- 
cicanit and feathers sticking ubout him like 
a niifpye, lieing forced to case nature in that 
p'ace; ind after that, I saw the prisoner at the 
ur, led Hopkins, looking into the strong 
imb (die door being open) upon Arne, and 
Anenas lyinc in the bed ript open, and covered 
■uch 'Jynix as high as hisi navel. 

An. Gen. Dill you hear Arne speak ? 

i'%rnn^toa. He was very hoarse, and could 
BK fpeak, but lilted up his eyes, and looked at 
MLllut^i^iu't. 

Ait. Gen. Did HufTgios then sec him ? 

Farrin^tun, Mr. llugt*ins must see him, if 
k»u rpii blind. 

An. Gin, Did yon hear them speak ? 

hrriHffton. Mr. Hoggins and Hopkins 
*^leretf , but I did not hear what they said ; 
ktHa^ifins shook his hoad, then Barnes shut 
^duor, and Hn^^gius and Hopkins were then 
Ngauray. 

Mi. Gen. How long after was it before 
Inedieil? — Fnrrington. About fourteen dayh. 

Mi. Gen. Did you see Aru« Initwcen this 
^•f Hiiffgiu* being there and his death ? 

hrringlon. I saw him the morning before 
nM^ tnd at that time he was so weak, he 

^ not stir any way, but there lay gaping 

vbe. 

Ml Gen. U'hat was the occasion of his 
M ia that languisbing condition ? 

tirrim^tiin. Arne'i coBfinemeat was the 
TOL XVII. 



occasion. I was in-the strong room three days 
myself with one Smith, my legs were so 
swelled, that the small wus as big as my thigb^ 
and 1 never knew a day's sickness till tliattime^ 
and if I bad continued a week longer it would 
have killed me, and I was forced to buy paper 
to ease nature in, and fling it out of the window. 

Att. Gen. What is tlie situation of that 
room? 

Farringfon. Its situation is at the furthest 
part of the prison northward, and there is a 
sewer under it, into which runs the water from 
the pump to carry off the excrements of the 

Erison, which are emptied into it, and the dung- 
ill was then about six yards from it. 

Att. Gen. What distance is there between 
the strong room and the dunghill now f 

Farrington. About eight yards, and all the 
nuisance of the house is flung there, and them 
are very bad smells. 

Att. Gen. What was the occasion of Um 
death of Arne? 

Farrington. I think it was the strong room 
was the occasion of it, for it was enough to 
kill the strongest body. 

Att. Gen, Did Arne die there? 

Farrington. He did, and Mr. Huggins al- 
ways said he had authority to put persons in 
tlie strong room, or irons, which 1 can prove 
under his hand (and was going to pidl out a 
paper, which not being allowed as evidence, he 
desisted.) I saw Mr. Huggins a second time 
walking upon tlie Bare with Gybbon and 
Levinz, between the hours of eleven and one, a 
week or a fortnight alter which he was at the 
strong room, 

Aic. Gen. IIow long did Mr. Huggins stand 
looking upon Mr. Arne in the strongroom ? 

Farrington. Ahout three, four, or five 
minutes, and he then stood looking at the door, 
as I now .Mand looking at the counsel. 

Att. Gen. Was Ame let out of the strong^ 
room afterwards? 

Farrington. I never heard that Ame was 
afterwards out of the strong room till he die<l. 

Huggins. Did iiol you make some aiiidavits 
by way of complaint to the Court of Common 
Pleas i* — Farrington. Ves. 

Hugging. Please, my lord, to ask, Whether 
or not Mr. Arne was meutioned in that com- 
plaint that he made ? 

Farrinf^ton. I never made but three afKdavits, 
two of which 1 have in my hand in print, hut 
don't remcmlier Mr. Arnt's being muotioucd 
in either of ihem. 

Huggins. My lord, the affidavits tend chiefly 
to the sending of coflins in.) 

Mr. Just, raiic. If \:>u intend to make any 
une of those attidavits, they must be produce*! 
and read. 

31 r. Richard Tulthorpc sworn. 

Att. Gen, Did you know Edward Arne? 

Fidth^rpe. I did, I was a prisoner then my- 
self, he was brought in the latter end of Augu^^t^ 
and I remember him a prisoner In* fore he was 
confined ia the strong room i i being ia the 

Y 



StS] 



3 GEORGE IL 



cellar, one Barnes and two or three other aer- 
▼anta of the wardena took bim by TioleDce and 
carried Kim there. 

Att Gen, Had you been in his company , 
and bad conTersation v^ith bim ? 

FuUhorpe. 1 had several times* 

Ait. Gen. Was he disorderly ? 

Fulthorpe. He might be a little in liquor, 
but he did nothing to offend any one, and gare 
DO disturbance to the company. He was car- 
rieil by Barnes into the strong room. 

Alt. Gen. What sort of a place is the strong 
room? 

Fulthorpe. It is a place like a dungeon, with 
A hole on the side big enough to put in a full 
pot of beer. 

AU, Gen. How big is the room P 

Fulthorpe. The room is about half the big- 
ness of the Court where the counsel sit, and 
atands near the duncrbill, and the sewer runs 
under it. I saw it opened. 

Att. Gen. What was over the common 
ptwer? 

Fulthorpe, There were boardslaid loose over. 

Att, Gen. What was between the common 
•ewef and the boarda P 

FuUharpe. Nothing. The walls were green. 
It was not tiled in, and had scarce been built 
above a week, and was as wet as any thing 
could be. 

Att. Gen. Who put Ame into the strong 
toomP 

Fulthorpe. Barnes and some others, then 

Crisoners, who acted under the warden, took 
im out of the cellar, put him in there, and 
locked him up. 

Att. Gen. Did you see Mr. Hnggins during 
the time Ame was there confined P 

Fulthorpe. I saw Mr. Huggins twice there. 
I saw him at the strong room ; he went along 
with Gybboo and Hopkins, and Mr. Huggins 
laid bis hand upon the door, and looked in, the 
door being open. 

Alt. Gen. How long was he there P 

Fulthorpe. A minute or two. 

Att, Gen. Who was there besides P 

Fulthorpe. Several belonging to the Fleet. 
I believe Barnes was there. 

Ati. Gen. How long before the death of 
Anie ?'--'FuUhorpe, About a month. 

Att. Gen, What condition was Ame in at 
the time he was put in there P 

Fulthorpe. When he was put in there, he 
was a little out of the way when fuddled, but 
when sober as well aa any man ; when 1 came 
to the door, there used to be a smell enough to 
atrikc one down. 

Att, Gen. How long was Ame in the strong 
room, before you saw him there? 

Fulthorpe. I went the next morning, and at 
aeverai other times. 

Att, Gen, How long was Arne there P 

Fulthorpe, About six weeks. 

Att. Gen, What condition waa he in when 
Uuggins looked upon him P 

Fmitkorpe, Ha wta ?«ry ill when Hnggint 
laakad upon jam/ 



Trial of John HugginSf 

Att. Gen. What do yoa think waa tb 
aion of bb death P 

Fulthorpe. The confinement and the 
ness of the room gave him his death. 

Att. Gen. Had Mr. Huggina spoke 
Ame taken out? 

Fulthorpe. He had not, for the dc 
shut, Mr. Huggins being then present. 

Att. Gen. How came you to be then 

Fulthorpe. I wanted to speak to Mr 
gins about business, for the payment of 
drawn upon Huggins by one Lewis. 

Att. Gen. How came Arae to cut hia 
pieces, and creep into the feathers P 
. Fulthorpe. It was occasioned by his ( 
raent; there was no fire there, and I 
the confinement was the occasion of hit 

Huggins. How oflen did you know 
out P — JWthorpe. Two or three times. 

Huggim, How long were you a p 
aflerP 

Fulthorpe. I was discharged by the 
Grace. 

Att. Gen. How came you to be pre 
the time Mr. Hoggins looked into the 
room? 

Fulthorpe. I waited for an opportt 
speaking to him about a note. 

Mr. Tudor Smith sworn. 

Sol. Gen. Did you know Edward An 

Smith. 1 knew Mr. Arne very well, a 
he was in the Fleet prison. I remem 
time of his coming into the Fleet prii 
was with him in the sponging- house, ai 
he was carried into the Fleet prison. 

Sol. Gen. Where did he lie P 

Smith. In the room of one Robert Shi 
continued there about a fortnight oi 
weeks ; but upon some quarrel was turn 

Sot. Gen. When Arae came out of th< 
was not his bed turned out with him ? 

Smith. It was; upon which, he thei 
the common -hall for some time. 

Sol. Gen. Did you see Arne carried 
strong room ? 

Smith, I was in the cellar, when he \i 
ried to the strong room ; Barnes toe 
away. 

Sol. Gen. What was Barnes? 

Smith, I apprehended him to be Mr 
gius's servant. 

Sol. Gen. What did you see done by I 

Smith. I did sae Barnes come, and tal 
by the collar, and he said. He must g< 
with him. Arae said, Where? Barnes 
No matter where, you must go along wi 
and the next monung I saw Arae in the 
room. 

Sol. Gen. What state of health wa 
when carried there ? 

Smith. He was in an ill state of healt 

Sol. Gen. What sort of a room was i 

Smith, It was newly built, very dam| 
nauseous place. I knowing him befe 
under more than common concern, #0 
Araa how ha did? And he said Ban 



^ the Murder nf Eihmrd Arm, A. D. 1729. 

Smith. 1 received ao aoBwer tVoiu Mr. 



uknl liim if lie had a bed ? 
H«aiilbebMt nobrdi but the nut day a bed 
■t> imii|;b( to hil». 

HtL ((«•. Ilov lone did he lie there? 

Smui. A moDtb or six weeks ; I tiwied him 

U. Cm. Wi8 lli«re any lirp-|ikce, any 
0»ik, ar Aoy thing oeceuary tu ease na- 

iiiA There vnu no (ire-place, no candle, 
Mt^Btct w jry tooseimtureiu, and hewui 
kriado all thai nature requiTPd (here; and 
■^itiaie, when I carried drink, nieai, ur 
A*kiB, 1 hare been forced to hold my nnae. 

U. Gn. What place was tliere tu let iu the 

SjwA. Tbere was a place oTer the door witli 
• loot in letigtb, anil another bole 

' 1 a fool and bull*. 

Dill yoM give any rolica lo Mr. 

' : L.i- condition litis muii was in ? 

^hh. iJnriiigbern B pritoiicr some lime, 1 

k ^ftii4 Ivr tliB benefit of the rules, and he re- 

I tBifi lat IV>r the iiberly of the rules, and 

I IhffaiH and Oybbnn insisted upon 10 guineus 

I ■■(; aoil I » rute foar letters of the usage I 

I Molted, ItAfing palil seTeral snuia of money ; 

I <4di 1 sent to Mr. Hui;gias by Robin tlie 

[ mr, and did in one of them, of the Ath of 

Qato, mrniioD Mr, Aroe's coofinemeui. 

It. Bamn Carter. To what uurpose wa 
tekUrrf 

imii. II partly related to my own buslnesi 

■■dl mtniiooed that tbe slri>ng loetu kus 

'"' ::■ < fit for ii Christian to be in, and Mi 

,1 n very miserable CO ndiiian ; an 

" *iicb a condilion, 1 ^lehima 

;:.. ^.'Mii. beiDfc in ■ mannVr nakeil tor 
ku •< ii.icrin^, lie bad ripped open hia bed, 
<UkJe<,l mio the feathers. 

Xr Baran Carter, Did you lake any 
••ttt leilrr »l bis lying in ilie fealliera ? 

' ~L I had wrote in the letter almul neeine 
Salotbe fcutheri, aiid direclnl ilie letter to 
Ib.Higjpaa, al liU houiw in Bl. Martin Vlane, 
"i ■« ii by Robin the porter. I spoke to 

M Jwtice Page. Thiit waa not material. 
Barim Carlrr, Did you ever aee Mr 
U in (be gaol f 

L 1 BCter did, but wtlelied an oppor 
W«tm*iatC him. 

** ) Carter. What condition wa' 

• M n muwrnble (ceue ; and 1 taki 

llic cause of hii death ; and that 

1*1 by lieiii^ in »iuch a condiiion. 

ku. I deaire he mav be asked, 

fnir I liAiJ oome into the Fleet prisuo, 

N ham seen nie ? 

I brlii*e 1 <ihuu!d. 
-itt. D'dyiiietetaee 

^ I ant Ur. Hugicins two or three 

W, u ibe lime ibe oruilionoii 

Hiumt. 1 rfetire lie may be aakei), my 
M, tf ba itKnni My auiwct frtm me tu the 






m 



nessf-.5ni,(S, It did. 

Jtoberl Satitlclair, the porter, iwi 

Atl.Gcn. It that ibeman, Robin? 

Smith. It la the man I scut. 

All. Ocii. Did you carry any lettcn 
Mr.Smilli? 

Haintclair. 
brnugbt aiiswi 

reason of the dislnnce of the time, cannot re- 
lueniber the delirery of the letters, but govs 
tbe answers to Mr. Sniiih. 

Att. Gen. Do you remember about what 

Sainlclair. I cannot uy about what time. 

Att. Gen. Did you carry any letters from 
Mr. Smith toMr. HagiipnBr 

Saintciair. I carried aereral letlera lo Mr. 
H ufgiiis from Mr. Smith, and always return- 
ed an answer to whom I dchrered them. 

lluggim. My lord. I desire he mav be ask- 
ed, if he ever delivered a letter from Air. Smith 
turner 

Saiittelair. I cannot iay I 
Ho|{g'ins at his own house. 

T^tmat Paine swoi 

Alt. Gen. Did you know Edward Arne? 

Faille. I did, and remember hi* being put 
in the Pleei prison. 

Att. Gtn. What itate of health was lie iu 
when lie esnit there? 

I'aittt. He was in a good state of health. I 
was in company with him and raplaiu Bat«- 
niao, who was al cards, and Ame was at play, 
and did not seem to he lunatic ; unil ooe James 
Bamea came imo the rnom whdat 1 wai in 
I'umpauy drinking with tliem, and Arne iras 
rloiii|c nolhinir disorderly, and Barnes forced 
liim into the strong room, and I was then hv. 

Att. Gen. WliowasBai'uesf 

Painr. Barnes was a prisoner, and was made 
m watchman by Gybbon, »ho gate him tbe 
liberty of the (rale. 

Att. G(R. What was his husineil? 

Paine. He was a watchmBD. 

All Gen. Whose servant (lid you look upon 
taiui in bfi> 

Puint. 1 looked upon him la be a servant of 
Mr. UyhtHin'n. 

All. Gen. Did you ever see Mr. Huggins 
there ? 

Paine. I never saw Mr. Hoi;gius there, Itut 
when llie priiihoouiariea were Uiere, 

Alt. Gen. What sort of a place was it befora 
it wan niude s-i ? 

Puine. It wna ■ stable where tlie cocki 
and heub roosted. 

All. GcR. Did you see it after it waa eow 
verted into a strong room, belbre Mr, Arne 




387] 



8 6E0BG£ U. 



Paine. I cannot s&y : bot there wai tn ill 
smell came both from the necessary-hooae 
and from the dunghill. 

Att. Gen. What condition was Arne in, 
ader lie was put in by Barnes ? 

Paine. Arne ^w outrageous, and tore his 
clothes and beddmgf. 

Au. Gen. What condition of health was 
Arne in ? 

Paine. I never talked to him but through 
the hole in the wall. 

Au. Gen. How was he before he died 7 

Paine. J was discharged before he died. 

Att, Gen. What kind of alteration was there 
inhisToiceP 

Paine. He was a little hoarser, abd I could 
not see him, but only as I talked to him 
through the hole. 

* Att. Gen, Was it a fit place to confine a 
prisoner in ? 

Paine. It was not a fit place to confine pri- 
soners in without danger of their lives. 

Huggint. WaK there a court of Inspectors 
tw governors of the Fleet ? 

Paine. There was such. 

Huggint. Did they not ballot once a month ? 

Paine, We once balloted for steward and in* 
spector. 

Huggint. Did not the court of inspectors 
place Arne in the strong room f 

Paine. Tlie inspectors did not so much as 
▼isit the strongroom. 

Huggint. if any complaint had been made, 
was not tbe power vested in the court of in* 
specters to redress ? 

Mr. Just. Page. Mr. Huggins, that is not a 
proper question. 

Huggint. My lord, I desire he may be asked 
then iifiw long it was before Mr. Arne died 
that he left the prison ? 

Paine. 1 was dischai^ed in September, about 
the 0th. 

Huggint. The 8th of September, my lord, 
wlucb was about six weeks before Mr. Arne 
died. 

Mr. Just. Page. When was the strong room 
built ? — Paine. lo Mr. Gybbon*s time. 

Uug^ins, My lord, if BIr. Oybbon built 
the strou^ room, there is reason to believe be 
paid for it. 

John Bouch sworn. 

Att. Gen. Did you belong to the Fleet f 

Bouch. I did, I was turnkey there. 

Att. Gen. When was (he strong room built? 

Bouvh. It was built in 1735, the latter end 
of the suuimer, by the direction of Mr. Huggins. 

Att. Gen. During the time that you be- 
longed there, did not Mr. Huggins come fre- 
quently ? 

Bouch. He came now and then, not jejff 
oflen. 

Att. Gen. When was Arne put in the strong 
room ? — Bouch^ He was put in about August, 

Atlt. Getu Did you know htm before he was 
earried there P 

'Bweh. IknewhimTerywdliindnofvriair 
any ill offered by him. 



Trial of John Hugghif 

Att.Gen. Whose order wis te pn 

Bouch. He was put in by the orde 
Gybbon and Mr. Huggins. 

Att. Gen. Did he die in that place f 

Bouch. He did. 

Att. Gen. How long was he there? 

Bouch. About a month or six weeks 

Att. Gen. Did you see Mr. Huggi 
during the time Arne was in the strou] 

Bouch. I cannot say I did. 

Att. Gen. Who was it orer-kx 
building the strong room ? 

Pouch. Mr. Huggins, wnen he can 
lodge. 

Att. Gen. Was he there when the 
was a- raising? 

Bouch. 1 cannot be certain, but I n 
there was a direction of the Court < 
mon Pleas for BIr. Huggins to ins 
gaol, and that he came once a week i 
order from the Court of Common Plet 

Att. Gtn. What was the conditio 
room? 

Bouch. The room was newly built ai 

Att. Gen, Did you carry any lett< 
Huggins relating tu Mr. Arne ? 

Bouch. 1 did carry a letter from a 
Mr. Arne's, and he was so weak thei 
could not speak. 

Att. Gen. Where did you carry it 1 

Bouch. From the Fleet prison. 

Att, Gen, What was it about ? 

Bouch. It was about getting Arne hi 
a gentleman gave me the letter, audd* 
to oring an answer as to Arue*s havir 
berty of tbe rules ; and I went my 
saw Mr. Hoggins, and gave him tli 
he opened it, and said he would sen 
swer by Mr. Hopkins. 

Att. Gen. When was this ? 

Bouch. It was in October, about a 
fore Arne died. 

Att, Gen. Where did Arne die ? 

Bouch. He died in the strong roo 
him two days before he died ; he wa: 
if dead then, and very weak and ill. 

Att. Gen, .What Kind of a place 
strong room ? 

Bouch. It was a very sickly place 
of the common sewer running under 1 

Att. Gen. What message did Mr. 
send by Mr. Hopkins as to the letter '. 

Bouch. Mr. Huggins sent word b 
Hopkins, that he would inform Mi 
friend what was to be done. 

Att. Gen. Who was it built tl 
room? 

Bouch. One Fry, a bricklayer, to< 
tions from Mr. ituggins, at Mr. h 
own house, and I was present when 
there. 

Att. Gen. Who paid for the buildh 

Bouch, { believe Mr. Huggins, for 
a master bricklayer, and I saw him th 
business afler the building was finishe 

Att, Gen, How came you to be the 

Bouch, I went there Q&eD to geli 
Mr. Huggiw. 



3»] 



fir the Murder of Edward Ame. 



A.D. 17S9. 



[5S0 



Mr. 



Alt. Gen, When were yon turnkey ? 
houch, I was not turnkey till after 
Aroe's deatb. 
Att. Gem, Did yon ice him in the strong 



fiiMcA. I saw him in the strong room twenty 

tioct, fur I Has then endcafouring to get to be 

tnitej. 

itt Gen. Whom had ^nu the pkice from f 

Hodk. From Mr.Hnggins ; and during the 

tef vas endeavouring for it, I saw Mr. Ame 

■tteMroogroom. 

James Tucker vwom. 

Atl. Gem. Do yon know the place (hat is 
oiled the ttmng room in the FJeet prison ? 

l\uker. 1 do, and' was employed by the 
WeUiyer ind carpenter to make the iron- 



Att. Gem* Whom did you make out your 

"to? 

Tkeker, I made it out to Mr. HugginSi as 



Att. Gen, Did you ever speak to any body 
about his relcascnierrt P 

Le Vointz. Whilst he was in this place, I 
met with Mr. Oopkins, and spoke to him to ac- 
quaint Mr. Huggins, that it was im{>ossible but 
that Arne must perish, if continued in that 

iilace ; and if he did not speak to Mr. Huggins^ 
[ would send to him myself; to which Hop- 
kins replied, he would ; aud afterwards 1 mat 
with him, and asked him, whether lie bad 
spoke f lie told me he had spoke to Mr. Hug- 
gins, who said it was no busiuess of his. 

Mr. Just. Fage. That cannot be given ib 
evidenire, for it is only hearsay. 

Le FoiutM. [Stuniiing up again.] I aaw 
Mr. Iluggius upon the Bare, with one Levins, 
a QnakiTf then a prisoner in the bouse, and 
Mr. Gybbfiii, during the time Arne was in the 



stmn*; room. 



Alt. Gen. Who paid you ? 

Tucker. 1 made the bill out in Mr. Hug- 
|infs name, and was paid by Pindar, and a re* 
BSft WIS given in full of that bill. 

Mra. Eliz. Le Fointg sworn. 

Jt't. Gen. Did you know Edward Arne ? 
hPointt. I did. 

Ait. Gen. Do you remember him a prisoner 
is ike Fleet, and bis confinement in the strong 



1/ PointM, I do ; be had been confined two 
vrihree fla3'S befure 1 went to him ; the first 
tm I saw him sittin«r upon a bench, and the 
Bvutme in Win feather-bed, and lie was cover- 
AirhKvin, and hi:i l>ed lay on the floor. 

.-'/:. (J in. What condition of health was 
kio* 



LtPmntz. I nevpr found him any way dis- ^as after the tire happened in liell-Savage 



kiDp^reiK only disordered by the'col(f and 
dut.pD<rss of ihe place. 

Alt. Gin. Was not his voice altered ? 

le Pol fit M, He had a shivering hoarseness 
SpOD liiui. 

Att. Oen. How long did he continue there ? 

le Point:. He continued there seven weeks, 
* ibfereaboats. 

Alt, Gen. What condition wns the place in? 

Le PointM. It was building in July, and J 
Rmember the finishing of it some time in Au- 

Alt. Gen. W^hen was Mr. Arne put in ? 

le Points. He was put in as soon as it was 
fiii»faed. 

Att. Ccn. Do you believe that was the oc- 
caioQ of bis death ? 

If Puir.tz. It was impossible to be other- 
^ ; fur the huililing was so very green, that 
S«u might pull the moriar from the bricks 
*A Tour fingers, and it was impossible any 
hiv eould be continued therein for seven weeks 
iQQut being killed by the dauipness of the 
fhoe ; and I verily believe that confiuemrnt 
*■ the occMioa of Ame's death. 



Serj. Cheshire. Which way did he come 
upon the Bare ? 

Le Pointz. I cannot tell ; there were then 
but two ways, one by the strong room, and ikm 
other through the house. 

Serj. Cheshire. Whereabouts is the strong 
room? 

Le Pointz. The strong room was built near 
the Bare, und joins to the end of the house ; 
and I saw them walkinjg; together ; aud that 
he could not well come in or out niiiiout com* 
ing near the stronpf room. 

8erj. Cheshire. What did you think was the 
occasion of his coming there ? 

Le Pointz. To take a survey of the walls, 
which were then finished, for that I saw him 
look up at them. 

Serj. Cht shire. Did you know Mr. Iluggins? 

Lc Pointz. J knew him very well. 

Serj. Cheshire. When wasjhisp 

Le Pointz. I lake it tu Ik* some time in Oc- 
tober, about fourteen days before Arne died : it 



yard. 

Thomas Levinz was called, and being m 
Quaker,* refused to take an oath, and there- 
fore cuuld not be admitted an evidence. 

Jluiigins. It is a <rreat w hilc ai(o since this 
matter happened ; there is iki notice taken by 
the course of the evidence how this matter has 
gone on, and therefore it was \>ry difficult to 
answer particularly thereto ; this 1 do sideinu- 
ly affirm, that during the t.ine Arne was there, 
1 never lieard of his name, that he died, or was 
in the strong room, till that I was iu the Fleet 
to be examined : that I never was seen in tlie 
Fleet prison while Arne was in the strong 
room ; and that no one of the kin^^'s witnesses 
has said, that I used any hard words aliout 

* *Mn the case of Bambridj^e (postca) the 
appellant's counsel called u (Quaker, and in- 
sisted that this is a ci\ il suit, in w hich he mig[ht 
be a witness. But the chief justice said, it 
was to this purpr>se a eiiininal iirucieding, and 
therefore he couid not be a witness. Strange'i 
Reports, vol. 2, p. 85C.''— IWicr Edition* 



331] 



S GEORGE U. 



Trial of John Iluggint, 



[SSi 



Mr. Arne.^ There was a suggestion of mj get- 
iing Arne into Bethlehem, it was oo part of my 
office as warden of the Fleet, bat 1 might by a 
friendly office use my interest with Mr. Tay- 
lor ; and that would shew me more a humane 
man, than one guilty of cruelty. 

That some of the prisoners^ who were wit- 
nesses, were discharged the prison the 7th of 
September, so it was not likely that they should 
be able to swear as to Arne's death, who did 
not die till October. 

As to Gybbon being deputy, the first evi- 
dence to be produced will oe the act for insol- 
Tent debtors m 1725, to prove that Gybbon car- 
ried iu a list pursuant to that act ; and deliver- 
cm! it as gaoler, and swore to it ; and I must de- 
sire, that Mr. Tanner may read the clause in 
that act of parliament, where gaolers are di- 
rected to make out a list of prisoners. 

Att, Gen, If you would prove Mr. Gybbon 
warden, you must prove what consideration lie 
gave, and what stile he bore. 

Mr. Just Page. Did the commissioners in 
that act take notice who was deputy-warden or 
not ? Let it be deputy, or how it would, they 
took no notice of that. 1 1 would be no evidence 
for the king. 

Huggitu. It will prove that Gybbon aeted. 

Mr. Just. Page. We shall see that when the 
act of pariiament is read. I allow Gybbon did 
act in tact. 

Att. Gen, If he has a mind to prove Mr. 
Gybbon deputy, he must prove it by his depu- 
tation. 

Serj. Cheshire. It is too early to offer this 
before the deuutation lies before us ; therefore 
I submit it, it it is not too soon to offer this in 
evidence. 

Mr. Just. Page. I cannot direct the prisoner 
how he should proceed ; whether this may be 
of advantage to him I cannot find. If he be 
charged from a particular fact that did arise 
by Gybbon, why should not Huggins, by the 
same rule of reason, justify himself by any 
other act done by Gybbon ? 

Vide Act.] Then the clause in the Act of In- 
solvency iu the year 1725, was ordered to be 
read. 

Mr. Just Page. I do not see, upon reading 
of the act, it affects any thing that has been 
said. 1 take it that the officer acts, and makes 
returns, and the law does not say whether it is 
the warden or the deputy < warden. Mr. Hug- 
gins, 1 dare to say you yourself will own it; 
and the use that you would make of it is to 
shew, thit he acted as warden. 

Huggins. FuUhorpe was discharged the 7th 
of September. 1 desire Mr. Tanner may pro- 
duce the list, and that it may be read to skew 
that 

Mr. Just Page. If Fulthorpe's evidence was 
laid aside, yet there are witnesses enough to 
prove, that they saw vou there : however, I 
most take notice of wnat Fulthorpe said ; he 
aid, that Arne was a peaceable man, and then 
gtre a defcription of the room i ind nid» that 



I 



the floor was covered with a few boards ; and 
that he saw the prisoner twice in the Fleet, and 
that he was there at one time, and k)oked in at 
the door, and then the door was shut, and ht 
went away. This defence seems but trifiing. 

Huggins. I intended it as to the credit of the 
witness. 

Mr. Just. Page. The man has sworn ho- 
nestly, and if it was struck out of the evidenes 
it would not signify ; and I must a little asskt 
vou, as no counsel is allowed but in cases of 
high treason. You were going to shew the act 
of the deputy, without shewing what authority 
was given to the deputy. If yon have any in- 
strument or agreement by which yoa consti- 
tuted Gybbon deputy, you must produce it 

Huggins, My lord, 1 cannot produce it, be- 
cause It is in the hands of the widow GyblMNi, 
or some other person ; and we are at this time 
in eouity. 

Mr. Just. Page, Affairs of this nature have 
always been done by indenture — as the aherifii 
of London to their under-sherifi*— and then yos 
must have a counterpart. 

Huggins. My ku'd, I never made any Meh 
indenture ; I desire Mr. Tanner may he asked* 
who appeared as warden upon the Inaolvcnl 
ActP 

Tanner, Mr. Gybbon, my lord. 

Mr. Just. Page, Do you believe he waa de- 
puty or not f 

Tanner, I looked upon Gybbon as a proper 
officer. 

Mr. Just. Page. Who do you think wu war- 
den? 

Tanner. I cannot say who was warden. 

Mr. Just. Page. I thought you would Ml 
have equivocated. You are a good officer, but 
I shall never eutmine you as a witness. 

John Jeffreys^ Keeper of the Compter, swora. 

Huggins. Mr. Jeffreys, pray acquaint the 
Court what agreement was niacie between Mr. 
Gybbon and me. 

Jeffreys. There was a writinsf made, and I 
was a witness to it, but did not know what it 
was. 

Mr. Just. Page. Mr. Huggins, the questions 
that you ask, you must firbt explain to the 
Court. 

Huggins. 1 desire Mr. Jeffreys may be ask- 
ed, if he was present at the agreement ? 

Jeffreys. I was present. 

Huggins. Was there any writing signed f 

Mr. Just. Page. You must take care to pro- 
duce the writings if you examine to them. 

Huegins, 1 have sent a mau for the reoeipl 
of 1,000/. 

Mr. Just Page. 1 cannot comply for thi 
same title made under your grant to lie givca 
in evidence for the grantor : it was a lilie 
from you, and how you will do to prove tbif 
by word of mouth, I cannot see how it can be 
done ; for when a treaty comes into artichp 
and writing, the treaty by word of mouth Nil 
an end witnout the wntieg ia prodiiecd. 



WJ 



Jiif the Murder of Edward Arne. 



A. D. 1729. 



ISSi 



Huggiiu, I was going to explain myself, 
iid wu o?er-raled. 

Mr. JnsL Page. Whenonce articles are come 
10 be a conveyance, except it is to explain that 
csBfcyance, and except it is to discover some 
firtnd even in the conveyance when given, it 
CHMl be spoke to. 

f]Hr. Baron Carter being gone out of Court, 
■wicmned, and Mr. Justice Page took no- 
iv lihmi of what had passed in his absence.] 

Mr. Hoggins's aim is to shew, that Mr. 

Gjttoo was sole, entire, acting warden ; and 

llslio act uf Gybbon's should affect him ; and 

Mibe late Act of I nsolvency read, and thought 

1i have read the schedule, but that could not be 

md. Mr. Huggins asked who brought in that 

KUdule, and -asked Mr. Tanner, whether Mr. 

G)kbon brought in that return as deputy or 

M; who said that he did not know who was 

Mnlen, but that Gybbon was the proper offi- 

cw: now Huggins carrying this matter fur- 

te, wouki have Gybbon appear to be his de- 

|Mv, ind has now called Jeffreys to prove that 

dipiitBtioD. Jeffreys says, that it was in 

viiiBg, and 1 could not allow Jeffreys to c;ive 

■ criifence what was in writing. Huggins 

■U is answer, that there was no counterpart, 

■ilhat Gybbon's widow had such appuint- 

wmL I submit it if it was not his act and deed, 

if Vr. Gybbon allowed uf it 

Htegins. My lord, it is only a receipt. 

J^ryi. My lord, it was a receipt for 1,000/. 
lid no agreement. 

fiiffMs. Mr. Gybbon agreed T\ith me for 
Wi. per annum ; and liking thobar^a>.n made 
«4!faHt of 1,000/. and this was all tlie writing 
krtnefaus, and in it declared that ho was to pay 
^Xs'. ptr ann., on condition of haviug the rents 
•f ilie house anil sh«.;)s in Westminster- ball, 
iirf rpqiiire<l a deposit of 1,000/. and a parole of 
thneynrs may amount to a leasp or demise. 

Mr. Barou Carter, .4t kix months' end Gyb- 
ks desired to haf e it renewed, and came to 
the cub«^|ueut agreement for 900/. |)er ann. 
Jv three years. If the Court could see that 
i^^reement, whether it do not amount to a lease, 
LHcre may be a demise in it, but how far the 
Coon will lay their commands to produce it, 
seihall not now di-ternii':o ; it would bo very 
kird to have it out of hLs power, and not to ad- 
Bit him to give evidence. 

Att, Gen. The law recjuires the best evidence 
&u \% to he given ; supposinr; that (hat writiiiir 
*H lost, he might he admitted to cfive evi- 
4iBce that it wai* lost. Jf it was in ilie hands of 
Hy officer of the crown, and they wantcd'lo be 
tviitted to give evidence as to the contents, 
■Wlber upon giving evidence, that the thinj;; 
VHin bciiifiT, and in the hands of a third per- 
^ ihey should give parole evidence as to 
Irt. 

Mr. Just. Page. Hiippose a man receive mo- 
^ by false tokens, hnt by some accident it is 
fHiato other hands, and he uses all the care 
lid art be can to get it, and pmyes that he can- 
at it, it would be hard to couvict a 



man, if he cannot come at the writing. It is 
the same in cases of life and death, by forgery 
and false deeds. 

Mr. Baron Carter. I agree your notion is 
right in cases of civil actions, for if he can't 
give such evidence as the law gives against it, 
be has a remedy ateqiuty ; but in this case, 
where a man stands indicted for murder, where 
can he have his remedy ? I am sure we sbouhl 
be guilty of murder, if we insisted on it ; Hug- 
gins ought to give an account that he can't 
come at such agreement. 

Uuggim, Mr. Jeffreys says, that he applied 
to Mrs. Gibbon, and Mrs. Gybbon told him, 
that It was m the hands of one Wilson, her clerk 
in court, and he could not tell whose hands it 
was in. 

Jeffreys. I have a copy of that writing, which 
has been in my hands long before any contest 
happened to Mr. Hugg[ins, for it was written al 
the same time the receipt was given. 

Mr. Just. Page. Is it a true copy ? 

Jeffreys. I believe it to be a true copy, and 
that there has been no alteration made in it. 

The Copy of the Writing read And itap* 

peared to be witnessed by Mr. Jeffreys, the 
26th of June, 1723. 

Huggint. Have yon had any conversation 
with Mrs. Gvbbon lately ? 

Jeffreys. Mrs. Gybtion came to me about 
fourteen days ago, 

Huggins. Was there any talk of any ioch 
thing as a lease or articles of agreement P 

Jeffreys. There was no such u ord mentioned 
as a'leasc or articles of agreement. 

Huggins. Do you know of any articles of 
agreement ? 

Jeffreys. I don't believe there were any, for I 
was very conversant with Mr. Gybbon, but 
never heard him ask after them. 

Huggins. How long did Gybbon continue in 
that otiice ? — J^ff'tys, Three years. 

Alt. Gen. U hat do you mean by that -of- 
fice ; did he continue to act for those three 
years ? 

Jrffreys. He did, and one year longer, which 
I applied to Mr. HuGC^ins for him to do. 

Mr. Just. Page. You were present at theset- 



tlin^Lj^ of the account between Mr. Huggins and 



present 
Mr. Hi 
Mr. (ivhbon: at the bottom of the account 
there ure some items that have no sums to 
them : pray how did that happen ? 

Jrlfreys. My lord, it was not settled. 

Mr. Just. Page. Was any thing mentioned, 
who was to he at the charge of repairs during 
the four years .' 

JifJ'rtK's. Mr Husfcfins made a memoranduiQ 
at the bottom ot the paper. 

Huggins. 1 1 M as settled at the end of four 
years. 

Mr. Just. Pu^:e. The repairs of the prison 
were left a blank. 

Uusifiinf:. 1 answer to that, my loril, that it 
was settled at t!ie end of four years : Mr. Jef- 
freys wuN then present. Your lordkhip scems 
to take it for a Icu^e of three years. 



SS53 SGEOBGSn. 

Mr. Just. Fuge. It is neitbtir the one nor the 
other, either lease or agreement. 

Huggint. My lord, Jeffreys ^aid there was 
BO ott^ agreement. 

George WeUanduwmn* 
Huggins, When did Gjbbon enter upon hb 

Wellend, Mr. Gybbon entered at Christmas, 
1733^ and I was concerned for Mr. Gybbon 
before, and by his direction acted, and he al- 
ways paid me my fees, and I never reeeifed 
any thing from Mr. Hoggins. 

Bugfins. Who bore allexpences relatiiig to 
the en^T^Wellaiid. Mr. Gybbon. 

mggins. How lonc^ did he act f 

Wmand. Mr. Gybbon was in fonr years and 
a half. 

Huggins. What do yon know abont Ame ? 

WeJkind. I was there then, "and Ame was 
«emmitted about the middle of May, and at the 
^ latter end of Senlember, Hopkins was sent into 
the country to Shropshire, and I acted till Oc- 
tober, and I was requested by Mr. Gybbon to 
go to the Company of Upholders relating to 
Mr. Ame. He was brought in May, and put 
at the Vine, and made liis escape, and then 
grew disordered in his senses. Some of the 
prisoners came and brought a bed of Mr. How- 
ard's, and 1 saw bim stark naked ; and it being 
desired, he was piH in -ttre strong room at the 
mraeot of the pritKiners. 

Muggins, nil at was done open yonr appli- 
cation to the Companr of Upholders? 

Welland. They took care of him. 

The witness had a book in his hand, which 
be called a check- book. 

Huggins. Pray give an account, whether I 
gave any direction relating to the prisoners ? 

Welland. I never saw Mr. Huggins there 
but twice, and that was when the Prothonota- 
riea were there. 

Huggins. When had you that book deliTered 
to you? 

Welland. Two days before Mr. Fitch died ; 
the book was brought into my hands, which I 
iMntinued to act in till Mr. Bigrave came in. 

Huggins. By the writing in that book, 1 can 

Eove Hopkins out of town. When was Hop- 
ns out of town? 

Mr. Just. Page. I will call Fulthorpe to 
dear up this matter. 

Fulthorpe was called again. 

BIr. Just. Page. When was it you saw Mr. 
Hoggins at the Fleet prison ? 

Fulthorpe. It was some time before I was 
discharged. It was about a month bef^^re Mr. 
Arne died, and I likewise saw Air. Farrington 
at the same time. Mr. Hopkins was there, 
and then came in with Huggins. 

Mr. Just Page. How oiWu did you see Mr. 
Huifiritis there P 

Fulthorpe. I saw him twice at the prison, 
hut ones at the strong room. 

Mr. JuBL Po^e. What time of the day was 
It jrott uw Mr. uuggins th«t ? 



Trial of John 

) Fulthorpe. It was between elereo ant 
and there were there Mr. Huggms, M 
kins, and Barnes ; and I saw Mr. 1 
walkmg upon the Bare, when Lev 
duaker was there, and I believe Mr. 
with them. 

Thomas Farrington was again call 

Mr. Juat Page. Who was at the 
room when you saw Huggins there? 

JVirrtR^^ofi. There were Mr. Huggii 
Jdns, and Barnes there. 

Huggins. I beg leave to observe, t 
thorpe was discharged on the 7tb of $e| 
and whether I may not be allowed to i 
Welland again, to know if Mr. Gy bboi 
give all orders, and to prove that the t 
usage was not to have the coroner bit a 
dies in mesne process? 
_ Mr. Just. Page. You may ask wb 
tions you think proper, for I will stay 
to>morrow morning, to give you an c 
nity of going on wiSiyour defence in yi 
way. 

Huggins. I desire then, my lord, he 
aaketl, whether Gybbon did not give al 
relating to the prisoners ? — Welland. I 

Huggins. Whether the coroner wa 
in to sit upon any bodies, but in executic 

Welland. We never had the coroi 
upon execution. 

Huggins. Whose servant was Barne 

Welland. Mr. Gybbon's servant, 
Gybbon pay him money. 

Huggins, Did you ever see roe and 
together? 

Welland. I don't believe I ever did. 

Huggins. At whose request was Aro 
the strong room ? 

Welland. At the request of the prisni 

Mr. Just. Page. Name at whose rec 
was put in. — Welland. I can't tell. 

Mr. Just. Page. How came you to k 

Welland. I was in the lodge. 

Mr. Just. Page. Were you then pros- 

Welland. I was. 

Mr. Just. Page. Can't you name 
tbem ? 

Welland. No, none of tbem are n<»w i 

Mr. Just. Page. Was not Farringtoc 
prisoner? — Welland. He was. 

Mr. Just. Page. How long is it sic 
were concerned in the prison ? 

Welland. In Michaelmas 1722, and 
nothing of it before. 

Mr. Just. Page. Was there not a be 
the warden for day-rules ? — Welland. 

Mr. Just. Page, To whom was the 
accounted for? 

Welland. It was accounted for to 
The Clerk of the Papers always rtca'w 
money, and I have been there several t 
the jMiyment of money. 

Mr. Lee. Was it not usual to give mo 
the liberty of the rules ? 

Welland. Mr. Gybbon made it a cui 
take two guineas m er ary lOOl. for the 



S7] 



Jbr the Murder of Edward Arne. 



A. D. 17S9. 



[SSS 



Mr. Im. Do tov know of any mooey paid 
to Mr. Hoj^giiis r 

WcUand. I doo't know any was. 

Mr. Ite. Were yon there when the strong' 
1MB wBs built? 

Wftiand. I was,- and Ame was the first per- 
too that was pat in. 

Mr. Le€. I ask you, whether it was all 
%tti^?^WeUmd. i belieTe it was floored. 

■r.Lar. Was it not an arclied Tanlt? 
Wdknd. It was a kind of a vault, and there 

fMahncb in it. 

Mr. Lee. Where was it situated ? 

Wdkmd, It wtt about three yards from the 
Miff. 

■r. Lte. Had Ame a bed there ? 

Wdiand, He had abeil in it. 

Mr. Lee. Was he not in a naked condition ? 

Wtlkmd, He was in a naked condition, which 
pscccded from his madness. 

Mr. £er. Was (hat a place fit for a man in 
hiicoodiiioD to be kept ini* — Welland. It was. 

Mr. Lte, Is there any phce so had in the 



WdUnd. There was a worse phice where I 
kv, calledjniius Cesar's ward. 
Mr. Lit. How could it be worse T 
Wdlmnd. Because many people lay in it. 
Mr. Lee. Whether writs were not directed 



», or Locum Tenenti? 
WtUand. They were. 

Ik. Lee. Whom were the writs returned by ? 
Wdknd. By Mr. Hugg^ns. 

John Brovniii^ sworn. 

ftflpss. How lon|^ ha?e you known the 
fkn prison ? 

Brnnitig. I hare been a prisoner there 
^•vrtwenty years. 

Bn^ginB. When any body died in the Fleet, 
osept in ezucution, was there any coroner's 
^notP 

Bnuning. Never, but when in execution, 
Mr. Dickson, who was Clerk of the Papers be- 
fcre Hui^gins came, told me so. 

Hug^in$. My lord, the prison beings very 
fall, it being against the time of an insolvency, 
ike prisoners grew very riotous, and JVfr. 
Gybbon could not come in, so that there was 
00 place but the strong room to put Arne in. 

Mr. Samuel Green sworn. 

Huggins. What was the state of the prison, 
ao'I tlie condition of it in 1725 P 

Green. 1 was had in, in February 1724, and 
tame out the latter end of June 1725, and J 
applied to Mr. Gibbon in February 17 34 for 
a ruoffi : 31 r. Gybbon said he could not help 
•e to one ; then I applied to the prisoners, 
and gave a guinea and a half to them for one. 

UuLgint. Was there a court of inspectors T 

Orctn. Yes, and I was one of them, and 
fvery prisoner that came in paid 5s. in order 
U apply to the Court of Common Pleas to re- 
(iiUitf the fees. 

Htigght. You did pbice people in rooms. 
Did yuu punish any prisoners ? 

VOU XVJI. 



Green. I can*t say we did. 

huggint. Did the warden dare to come in ? 

Green. He did not. 

Mr. Just. Fage. Could the prisoners set open 
the gales ? 

Green. They could not set open the gates, 
liecsuse there was a turnkey. 

Huggins. Did Mr. Gybbon offer to come in f 

Green, He did. 

Mr. William Howard sworo. 

Huggiru. Did you know £dward Ame ? 

Hoxard. Mr. Arne came in about thre* 
weeks before I went out, aad he was in the 
same room where I was, and wanting sonse 
goods, Arne offered me much more than I 
thought they were worth ; for which reason I 
did not apprehend him to be in his right under* 
stondinsr! 

Htfggint. Did you desire him to bring some 
friend ? 

Howard. I think I might desir« him ta 
bring some friend. 

Huggins. How much might be offer ? 

Hovttrd, He offered me nine ^iueas, but I 
took three, when I sold them to his friends. 

Mr. Daniel Woodcock sworn. 

Huggins. What do yon know of Edward 
Ame!* 

Woodcock. He came into the Fleet prison in 
1725, and I was a prisoner a year and a half 
before that, in July 1733, and continued thera 
till September 1725: and 1 remember Arne's 
being there some time before I was discharged. 

Huggins. Were you there when he was 
carried into the strong room ? 

Woodcock. I was. 

Huggins. Were you in the cellar when h€ 
was taken from thence ? 

Woodcock. 1 were upon the stoirs when he 
was carried into the strong room : He lay up 
and down in the gaol in the common-hall and 
cellar, till he was carried into the strong room, 
and he was in it till I cnme away. 

Huggins. Were you ever in the strong room P 

Wiwdcock. I uas. 

Huggins. Do you remember the building of 
\i?^Woodcock. 1 do. 

Huggins. How near to the laystall and dung- 
hill is ii? 

Woodcock. Within eight or ten yards. 

Hhgginf. Arc there any lights ? 

Woodcock. There is a place to put in drink at, 
on the side of the door. 

Huggins. What is the wall made of? 

Woodcock, Lime and brick, as other walls 
are. 

Huggins. How long was it finbhed before 
Ame was carried in P 

Woodcock. 1 can't be certain. 

Huggins. Did you see Arne let out at any 
time? 

Woodiock. I saw him let out, and be ran 
about stark naked. 

Huggins. Did you ever sec him naked be- 
fore he Was put in Uierc ? — Woodcocks No- 

Z 



339} S GEORGE U. 

Huggint, Did yoa e? er lee me at the prison f 

Woodceck, Yes, when the prothonotaries 
were there. 

Ifuggint. Did yoa think you shooid hate 
knowD, when 1 came there ? 

Woodcock. It was as well known, as if the 
kinfif had made a public entry. 

Hugfim. Was it not for tbe prisoners' secu- 
rity to have Anie pat there ? 

noodcock. 1 thmk it was. 

Hii^^mf. Who sold Ame his goods? 

Woodcock. Captain Howard soil Ame bis 
goods. ^ 

Uuggint, My lord, I mast ohsenre that the 
court of inspectors punished prisoners. Did 
not the inspectors punish their own prisoners ? 

Woodcock. Yes, they pat them in the stocks. 

Uuggint. Could Nr. Gybbon come into the 
prison? — Woodcock. Uc could not. 

Mr. Just. Page. Why then did yoa not all 
go out of prison ? 

Huggins. Did not the court of inspectors 
dispose of rooms ? 

Woodcock. I can't say. 

Huggins. Did yoa see Barnes carry Ame to 
tbe strong room. 

Woodcock. 1 saw Ame as he was going to 
the strong room with fiames ; and tnere was 
a complaint made to the court of inspectors; 
but not about this man, but about others. 

Huggins. Was he a qaiet man ? 

Woodcock. 1 saw no other, than his running 
about like a madman. 

Huggins. How many days was Arne in the 
Strong room before yon were let out of prison ? 

Woodcock. 1 was let eat about the 4tn or 5th 
of tSeptember, there was an application made to 
the Court of Common Pleas, and I made an 
affidavit against Barnes. 

Mr. Samuel Humphry t sworn. 

Huggins, Were not you steward of the court 
^f inspectors? 

Humphrys. I Was steward for some consi- 
derable time. 

Huggins. When was the court first erected, 
%j^ upon what occasion f 

Mr. Baron Carter, Mr. Hugi^ins, how you 
can apply this, I can't apprehend. Mr. Hnm- 
phrys, what do you know of Ame or the 
strong room f 

Humphrys. Mr. Ame was a prisoner there, 
when I was there first. 

Mr. Baron Carter. Where was he when he 
came first P 

Humphrys. A person of his name came 
there, whom I knew, and I went with him to 
see Mr. Arne, and he lived intemperately. 
This gentleman, after he had been there, had 
supplied him with money, which he spent in 
liquors ; and after some time he was much al- 
tered in his way, and 1 saw him one day walk- 
ing with his hat and wig off in the ram, and 
took notice of it ; ami after that he proceeded 
to furtlier extremities, and took up ahrick«bat, 
Md throw ed it upon the Bart. 



Trial ffJohn Huggins, 



[840 



Mr. Just Page. Do you belicfft be had any 

sign against any body ? 

Humphrys. I Mieve be had not, 

Mr. Just. Page. Did he ever hit any body P 

Humphrys. I do not know that be did, bat 
we hod apprehensKMis, that ha might, alW 
being in that condition ; he was an olyeet of 
great eompassioa. 

Huggins. What was bis bebaTioor? 

Humphrys. His behaviour was soch, Ifall 
he was not fit for a bed-fellow. 

Huggins. Do yoa know any thing of Us 
beiuff put into the strong room. 

Humphrys. Before he was put into tbal 
place 1 was discharged. 

Huggins. Do you remember that yon nw 
me there? 

HiMRpAryi. I don't remember I saw yo« 
there, except when the protbonotariei wera 
there. 

Huggins. Was that room built when ysn 
were there ? 

Humphrys. According to the best of mj 
memory, that room was built while I wss 
there. 

Huggins. Was it not a stable before f 

Hufnphrys. There was a stable, butldool 
apprehend it was built on that spot. 

Huggins, Were you present at any thnc^ 
when the prisoners desired to ha?e Arne prt 
into the strong room ? 

Humphrys. I do not know it ; it waa ate 
that I came awa^. 

Huggins. Did Gybbon dare to ooom klif 
the prison without leave of the inspectors P 

aumphryt. Mr. Gybbon was very anwiBhg 
to come in, and I believe the reason was, be 
could not come in with any safety. Mr. Gyb- 
bon sent one day to some f;entlemen of the 
master side to know, if he might ▼eoturs wilb 
safetv to the Fleet prison, for that be bad a 
mind to see the repairs ; upon which answer 
was returned, that he might come in ; and Mr. 
Gybbon came in, and 1 went about with him. 

Huggins. 1 desire he may be askedt whe- 
ther if any man wag injured, wonld tbey mit 
have complained of it ? 

Humphrys. I was there when Ame came in, 
and discharged before he was put in the strong 



room. 



Mr. Thomas Dean swora. 



Huggins. Did you sec me in the prison 
daring the time Mr. Arne was there P 

Dean. During the time I was there, which 
was till the 12th or 14ih of September, yoa 
were not there ; I was discharged on the 7tb« 
but stayed a week after. 

Huggins. Was it the opinion of the prisoncn 
that Air. Ame should be coufined ? 

Dean. It was. 

Huggins. Who provided him victuals P 

Dean. Oue Mr. I«oiiden found him in meal 
and drink, and he was allowed for iL I havt 
seen Mr. Louden in the room. 

Huggins, Who kept the key of the 
roomP 




tlu Murdtr of Edward Ame. 



A. D. 17». 



isa 



know wbo kept ilie kej. 
you nee Arne there f 
« aMo Ame >b ilie strong room. 
- Wbeii was he carried there ? 
_. . .I«HUC(immille<l to thGatroagroom 
iiJalfiOrtti*li«einiiing of Auguat. 
" - -- . Did yoj «ee me wiih Gvbhuii f 



I 1 



iml I 



: Bare 



1 Uie jiriuiD, lod was upon the 
1*MHb liini. 
ill. Gn. Did not Gjbbon'a Mrranl* come 

An. Tb«Tdiil,BndG}-bl>niieBnietoeh*pel. 
JK.Gm. WberealMXim n ibe diapel f 
bu. Tite chapel i( within tbe walls of tbe 

ituGm. ir Mr. Gybboo dared to venture 
If INM Id chipel ; bow came lie not tu corae 



fli|fMi. Pleace to »k, irbetbcr, if between 
4*bMn often and lirelre 1 had bccu tbere, I 
WMwt have been aeen ? 

Dtm. Captain Patiiaon and otben went 
liHllhcpnaDonitb Mr. Gjbbon. 

bggbu. Tbe question is, II' I bad been 
tMh whMker jou would not hare seen me t 

Dka*. I tboubl. 

fftfprf. Had nut Ame a broken coosli- 

h. Band Carter. Mr. Hu^ins, I cannot 
iWl yos lo gu into llial evidence; 1 don't 
Jtovwhatadraiitage it will be to vou, you are 
H^M pFTJodice youraeir; lur if be had a 
Mag eonadtntion, lliere was less reaacn lu 
Itttiai inlo Ibestrang room. 

Mr. John Louden mom. 

8^ftiai. My lord, be pleased lo uk Mr. 
hmtm, whetbcr be bad tbe care and custody 

Hr.Juat. Pagt. Answer that qiiealion. 

IjBi/rn. I knew Mr. Arne befure be came to 
pnoo, I bad uime acquaintaoue with him ; be 
ant ialo prison about tbe Utter euil of June, 
■■Imoe K^ullenteu Bpuke to me to have Mr. 
liBC Wile with me, and be allnwed me 5s. per 
waafe; but tlw fcntlemei) jcrew uneasy at hii 
Amoc wiih tlietD, because thai he was sume- 
Anf otn of or Jer, and somelimealter growing; 
mna, tlir uentieman with wham he luy quar- 
nUfd with him, and 1 could not afford to board 
kin any Ioniser, he not beiog able to pay me ; 
urfnAcr he wia turned from my table, aome of 
tt* Uphntdin' Company came and desired me 
l»il»ebiin aa usual ; and etery iDoming I 
Mmed hJBi a breakfast, and a plate of not 
vkUBb ud drink, and I had the key of the 
■Ma ta two w tbm diva after be was put in. 

Mr. JimL i'oge. llaw came yon by tbe 

Z jurfsw . floRielimes it was half ao t 

tAnr, Hid 1 Mid, if tbcy would not lei 
hi** Uw k«), 1 wuubl not furnish hiin 



Mr, joaL Pa^t. 




B key. 



Louden, Though t bad thekey, and had tbe 
liberty of going in, I bad no power to let him 
out. He was nercr out, from the time he waa 
put in, but once, and that was when some ser- 
•BDta of ihe Upholders' Company came to aes 
him, anil then Barnes lacked bim up a^in ; 
and ivben he was out be was siurk naked, and 
ran into the chapel with the feathers all about 
him, and I went lo take lum lo carry him in 
again, but he was very sturdy, and would not 
let me. 

Htiggins. Ill all the time you bad the h 
and tbe custody of bim, which was from tl 
Ihird day after Ills goiog into Ihe room, till 
three days of his coming oiil, did you lee mt 
in the prison? — Louden. 1 did nnt. 

Huggins. Do you think you should, if I bad 
comeP — Louden. Yes. 

Huggifu. If 1 had been In the bouie, should 
you hareseen, or heard of it ? 

Louden. I should. 

Buggini. Did any-body sit up wlih Mr. 

Louden. There was somflxidy sat up with 
him a few nights before be died. 

Huggiiu. I submit it lo you, my lord, whe- 
ther 1 hIikII produce the people of the Up- 
botdriVCompHny tbalsat Up with him. 

Mr. Just. hu'. That will be of uo great 

Huggim. Was there a court of inspectors, 
who gurerned Ihe prisoners? 

Louden, Yes, there was. 

Iluggiiti, Do you renii^mher yoD saw Mr. 
Gjbhon there then ?—iai<Jf«. No. 

Hnggim. Did the prisuoera disjiose of their 
rooms ? — Louden. Yes. 

Sir. Baron Curler. I don't understand very 
well what way you propoae to make your 
defence ; if Mr. Gyhbun liad the sale power, 
(hen tbe court of inspeclora could nut; firat 
Mr. Huggins is not coocerued, because Gyb- 
bon waa ; and then he could not be concerned^ 
because the court of inspectors was. Mr. 
Huggins I take tn be wiu^en, and Gybbon 
deputy -warden. 

An. Gen. What kind of a place is tbe Strong 
room? 

Loudrn. It is a brick-wall, nod arched oTcr 
with bricks, and the floor is boarded, and at 
that time a beiicb went across the room. There 
is a bole OTcr the dour, with four or live iron 



inh3 


tbe side ; it 


was 


I^W 


huAt 


room 


about 




eight week 


belo 


eAr 




put ill 


, there 


was 




lire 


plac 


, no 


any 


conve- 



Alt. Gen. Was it not the occasion of his 
death? 

Louden. It was possible it miijht. I Iieliev* 
it might do him prejudice as to his health. 

All. Gen. Did it hasten his death ? 

Louden. I du nut know but it might ^ 1 bt- 
lieve it did hasten bis dealh. 

.((t- Gen. Wlmgaveyoulhekey? 

Louden. Tbe turnkey ; uud 1 team 




MS] 



8 GEORGE 11. 



Triai qfJohn HuggmSt 



[S44 



Att. Gen. As yon evne to take charge of 
it, did you alivays keep the key ? 
' Louden, Soinetimea 1 had it, and sometimes 
they had it. 

Sir, Just. Page, Do you beliere you could 
have lived there six weeks, if you had been put 
in that room ? 

Luuden, 1 doD*t believe I could. 

Morgan Gwyn sworn. 

Huggim, Were you a prisoner all the while 
Mr. Arne was there ? — Ovyn. Yes. 

liuggini. Did you seo mein the house dar- 
ing that time? 

Gwifn, I difl not hear that you had been in 
the house all the time be was a prisoner there, 
nor did I see you. 

Huggins. Do yon think if I had come, you 
should have seen me ? 

Gwyn. 1 do think 1 should. 

Huggins. My lord, 1 have witnesses to prove 
that { was in Hampshire from the b^inntng 
of September till the middle of September ; 
that one part of the time that Hopkins and 
myself are said to be at the strong room 1 was 
out of town, and another part that Hopkins was 
out of town. 

Wm. Huggint sworn. 

Mr. Just. Page. You are son to the pri- 
soner? 

Wm, Huggint, I am, my lord ; I hare a 
house in Hampshire, and 1 remeoaiber by se- 
Teral circumstances, that my father came there 
the 1st of September, and continued till the 
14tb or 15th. 

Huggins, Was I from your house during 
that tiuieP 

K'»i. Huggins, Neither my father nor myself 
were; that being tbe long vacation, my father 
was absent from bis business, and was out of 
town at sir George Oxenden's. 

Richard Smith sworn. 

Hugnint. I desire he may be asked, my 
lord, whether he saw me in Hampshire, iu 
1725, at my son's P 

Stnith, Mv lord, I saw Mr. Hoggins in 
Hampshire about tlie 14tli or 15th of Sep- 
tember in that year ; and he was likewise there 
some time in August. 

Mr. Just. Pu^c, Was Mr. Huggins twice 
there in that summer? 

Smith, He was there for a great many days 
at one time. 

Mr. Just. Page. Did he go op to London, 
and come down again ? 

Smith I cannot say whether he did or not. 

Mr. Just. Page, Did he come up and down 
sevrral time.^ ? 

Smith. He was constantly there for some 
days. 

Mr. Just. Page, What are yon ? 

Smith. I am trnant to the estate which Mr. 
Huggins purchased. 

Robert Knight sworn. 
Huggins. Do ynu kuow of my beiog at roy 
son's bouse in Hampshire, in 1795 f 



Knight. Yoo were there between tlie4lh and 
11th of September, and stayed 15 days. 

Huggins, When did Iretura? 

Kntght. The 15th. 

Huggins. Was 1 there in Augsst loo f 

Kmght. You were there bctweeo the flUi 
and 14th, and stayed seren days. 

Charles Bird sworn. 

Huggins. Do you know of my being al ay 
son's house, in Hampahire, in 17S5 ? 

Bird, You werethere in August, 1795, abont 
the 7th, but J cannot soy bow long you «t>f0i 
there ; then you came down on the 1st of Stp- 
tember, and returned the 15th oi thm sum 
month. 

Huggins, My h)rd, I wentfcom tbanotkls 
fierkshire. 

James Green sworn. 

Huggins. Did you see me in Hampskare al 
my son's in 1735 ? 

Green. I was a serrant then, and liwi m 
Hampshire at the aame time; and yoo 
there on the 1st of September, and 
till the 11th ; and in the same year yao wan 
there iu August. 

John Tucker sworn. 

Huggim, Whom are you serf ant to? 

Tucker. To air George Oxendca. 

HugginM. Was I any time in BeriuhiMflB 
1785? 

Tucker. You werethere in September, tfii| 
and on tbe 17th I carried yoo from WittaahiBi 
in Berkshire, to Henley upon Thames. 

Huggins, Did you carry me any farther? 

Tucker, No. 

Mr. Just. Page. When did Mr. HngiriBS 
come there ? 

Tucker. I did not mind that ; I know Ike 
time when I carried him from theoca, bat 
cannot tell when he came there. 

Sir George Oxenden sworn. 

Sir G. Oxenden. My lord, Mr. HusginsasMl 
be came from his ^n's about the 15tb of 8s** 
tember, and .came to Hi'oley abont the lYta. 
I remember very well that Mr. Huggios was 
at my house in Berkshire, because sir Ccail 
Biftbop being there (it was the day before av 
after Watlingtiin fair, which was the 18tk), 
Mr. Huggins offered to purobsse a little fans 
of liim, wbich Mr. Huggins said he woald 
make a present of to his »on, wliicli, I thought, 
was a kmd, good-uatureil act: be went away 
on the 17tli or laih, and I rather believe it waa 
the 18ih, because on that day 1 went to Wal» 
lii!(rton fair. 

Mr. Just. Page. How long did Mr. Hu|^ 
gins stay at your house ? 

Sir G. Otenden. Mr. Hoggins was not thara 
above two days, and said that he came ooiaf 
Hampshire. 

Daniel Hopkim sworn. 

Huggins. I fliwrt obser? e, mj laN| tka wKr 




Jor iJie Murder of Edward Arne^ 



A. D. 175». 



[8M 



•Md, Uuit Mr. Hopkins was witli me, 
ikithe WM premit at the strontr room. 

Ur. Just Pmge, Mr. Hopkins, pray when 
M JOB go oui •t'lowo P 

Mcflmu. I went ID the Oxfoni ootch on 

Ifiadaj, the 97th of September, 1735, and 

|«li Word that oifrbt; and on Toesday took 

Iks Wsicester coach to Moreton in the dtarsb, 

saAvoft from thenoe lo a pUce called Barton, 

tsmiHr. Oakley 'a, a relation's. 

Ambs. When did yoQ return ? 

Bjfhii. I camt back on the 14th of Oc- 
Mv ■ Ibe same year. 

B^lfinM, I desire, my lord, ha may be 
liirf, tfatar he aaw ne m the prison in the 
■sdi of September? 

BtfkUm, no, nor in October ; for yon were 
MtCBOMback on the 19th. 

Ibgfm. Were yon at the door of the strong 
1MB with me f 

Utfkimt No, I WM there by m vself. 

Im^OUsAire. Do you know Mr. Fairing- 
Mf^Bipkim. Yes. 

In. Cieikir§* Don't you rsmember that he 
IWiHRe with you ? 

Brnkkm. I dea't remember any eompany 
VHtkcre then. 

Iq. CAesftire. Was Barnes there ? 

BbUm. No. 

k^Ckakin. Who opened tlie door ? 

iMiai. I cannot tell. 

% Cktakirt. Did you see Mr. Aroe ? 

W y tmi , I saw him there ; he was naked ; 
kthsd something aboot him white, but 1 can- 
Majr what. 

m Ckakire. Had vou no discourse about 
^wm?'^ Hopkins, No. 

Herj. Cktskire. Did not Mr. Gybbon send 
J9§ Is Mr. Hoggins aboot Arne P 

Btfkuu. No. 

8w|. Ckahire. When you were at the door, 
M you aot whisper to aoy ooe P 

napkin$. No. 

Stg. Ckakire. Whose servant was Barnes ? 

BtffkinM. He was servant to Gybbon. 
Isn. Ckeskirt, Who named him a watch* 

Hapkiitt, He was a watdunan when I came 
; and 1 saw Gybbon pay him several 




fls^ CAcsAire. Whom were you appointed 

Bmpkimi, I was recommended to Mr. Gyb- 
bsn by Mr. Huggins. 
8ar|. Cheshire. Dad you do any business for 

9 




jkins. Yes, and attended him constantly 
H hb' house every morning ; but 1 never had 
SMr^iBg for that trouble. 
■■i. Cheshire. Did you buy your place P 
Hafkim§» No. 

flBi|. Cheshire. Did you take all those 
Fs In Mr. Hoggins for nothing? 



Memkms. He had seklom any thing for me to 
); I was in the morning generally with him 
■Bt seven o'clock, and left him by nine. 
«iq.CiH4M.D9j9BlnowMrs 



Hophms, Yes. 

Serj. Cheshire. Had you no discourse with 
her about Arne as to bis condition ? 

Hopkins. I do not remember I bad. 

Ser). Cheshire. Mr. Hopkins, pray consider 
with yourself, and answer directly, whether or 
no Mrs. Le Pointz did not desire you to speak 
to Mr. Hugffins about Arne, and you said you 
would, and mat you came to her alter, and told 
her, that you had spoken to Mr. Uumins, and 
that he said it was no business uf his? Pray 
consider, and recollect yourself. 

Hopkins. I cannot recollect it. 

8er|. Cheshire. How did Arne come into the 
strong room P — Hopkins. 1 do not know. 

Seij. Cheshire. How long was he there P 

Hopkins, Six weeks. 

Scry. Cheshire. How long was it in that time 
before you heard he was there? 

Hopkins. It could npt be long. 

Serj. Cheshire. How long after the beginninnf 
of the six weeks was it that yon saw him there? 

Hopkins. I cannot tell how long ; it could 
not be long. 

Serj. Cheshire. Was there any matter in the 
gaol that you did not acquaint Mr. Huggins 
with P 

H(^kins. I seldom acquainted him whh any 
/>f the transactions. 

Serj. Cheshire. Do you remember you ac« 
quainted- him with this man's being in the 
strong room? 

Hopkins. I do not know I did. 

Serj. Cheshire. Did you hear aoy complaint 
of his being in that place P 

Hopkins. I cannot say that 1 heard any 
complaint of tiis bcinj; there. 
I ^$c^j. Cheshire. 1 have in my hand, Mr. 
Hopkins, an exaniinaiion of your's, and 1 would 
have you consider with yourself, and I will ask 
YOU one question or two. Do you think the 
kcepiuif the man in that place m us tlie cause 
of his death? 

Hopkins. I had been very credibly informed 
of the indisposition of Arne before. 

Serj. Cheshire. Upon the oath >'0U havetakeo, 
was not A roe's lieincf C4»nfined in that place the 
occasion of his death P 

Hopkins. 1 cannot say, upon the oath that I 
have tai(eo,ithat it was, as he was mad and sick 
before he was put in the strong room. I believe 
the madness was the occasion of his death. 

Att. Gen. How long after Mr. Arne was 
confined was it that you saw him P 

Hopkins. I «annotsay how long ; I balievt 
it was in the mouth of September. 

Att. Gen. Did not you see him more than 
once? — Hopkins. 1 do not remember. 

Att. Gen. 1 ask you again, Did not yon 
see him more than once? 

Hopkins. 1 do remember I saw him a s^ 
oond time lying on the floor, and the upper 
part of his body was then naked. 

Alt. Gen. Was suy pri^uer in the Fleet 
contiued in such a strong room before ? * 

Hopkins. None was put in there befofnp nor 
in any such. 



S47] 



S GEORGE li. 



Ati. Gen. What kind of room was itf I 

Hopkins. The roof was arched; it was built - 
eren with the i^rouud, and bailt not long before 
Arae was put in there. 

AU, Gen. Did you obaervethe condition of 
the wall ? — Hopkins, The room was damp. 

Att. Gen, What officer were you belonging 
to the Fleet P 

Hopkins. I was Clerk of the Inquiries. 

Att. Gen. Did not you go to Mr. Hugglns 
frequently P 

Hopkins. I went to Mr. Muggins three or 
four times a week. 

Att. Gen. What did you go to Mr. Hug- 
gins upon P 

Hopkins, J went to him about his own bu- 
tioess. 

Att, Gen. Did you never attend him on 
nominjifs about the business of the prison ? 

Hopkins. I hare acquainted him with some 
things. 

Att, Gen, Did not yon acquaint him with 
natters of consequence in the prison P 

Hopkins, I dicf, if they were matters of any 
consequence, or extraordinary. 

Att. Gen. Did not yon acquaint Mr. Hug- 
gins with Mr. Ame's being there P 

Hopkins. The reason is why I did not, that 
I went out of town on the 27th of Septembo', 
•nd did DQt return till the 14th of October. 

Att, Gen. I ask you. Whether you betiere 
in your conscience you did acquaint Mr. Hog- 
gins or not P 

' Hopkins. It is very likely I did, if I was de- 
sired. 

Att. Gen. Do you believe in your conscience 
you did, if you were desired P 

Hopkins, Why, I rerily believe in my con- 
science 1 did, if 1 was desired. 

Att, Gen. How do you know Ame was mad P 

Hopkins. I heard that he was. 
. Att. Gen. Would not hb own room have 
been a sufficient confinement P 

Hopkins. I bdieve it would. 

Att. Gen. Did vou receive any order from 
Mr. Hoggins for the relief of this man P 

Hopkins. I do not know that I did. 

[Upon which his Examination, which was 
taken belbre Edward Hughes, esq. upon oath, 
was read, to shew his prevarication.] 

Mr. Just Page. I ask you, Whether in the 
month of September, there were not a great 
many people discharged out of custody, and 
whether there was not any one room that be- 
came empty P 

^ Hi^kins. I believe there was, for fifty or 
sixty persons were then discharged ; but I had 
nothing to do with the affair of rent. 

Mr.JaaLPage. Was there any room better 
Ihan the strong room empty ? 
- HopJans, Any room was better than the 
ttrongroom. 

: Mr. Just. Page, How long was Ameoon- 
timied there after the 7th of S^itember P 

Hmkiu. lit was ooB t iaiwd tb« till he 
died7 



Trial of John HuggitUf 

Mr. Jnst Page, Was there toy roe 
house so bad as that P 

Hopkins, I do not know of any. 

Mr. Just. Page, When so many n 
charged, might there not be a room tl 
might be put in P 

Hopkins. 1 do not remember any di 
of rooms. 

Mr. Just. Page, Were there no plac< 
where the fiflv or sixty lay P — H<^kin 

Mr. Just. Pate, \Yas tnere not a re 
for one man to Re in P — Hopkins. Yes 

Att. Gen. Had you any discourse 
shop about ArneP 

Hopkins. I do not remember he ev 
to me about him. 

Att. Gen. Did Mr. Gybbon never 
you in the presence of Bishop, to spea 
buggi--. that «>»e «« rS^t ST 
AmeP — Hopkins, He did not. 

Att, Gen. Did Mr. Gybbon ordei 
speak to Mr. Huffgius to get him into 
hem, and to spebk to Mr. Taylor to gel 

Mr. Just. Page, I must observe 
Huggins owned that he only did it ( 
of Ame's being got into Bethlehem) as 
and not otta^cfiifs warden. 

Mr. Lee. Mr. Hopkins. I ask yo 
ther vou at any time spoke to Gybboi 
one dse, to give Mr. Huggins notice 
being in the strong room? 

Hopkins, I do not know that I did. 

Thotnas Smith sworn. 

Huggins, What resolution did 
holders' Company come to, as to the c 
ing Ame out of the Fleet P 

Smith. He was servant to the Coi 
Uudertakers at Exeter Clianffe. 

Mr. Just. Page, Do you know if i 
to be discharged, or how P 

Smith. Martin and otiiers, membc 
said company, first arrested him, and 
carried to a bailiff's in Hare-court, 
there a considerable time, and then ^ 
ried to the Fleet ; and upon an appli 
the Company of Upholders, they agre 
charge him, and get him into Bethleh 

Huggins. My lord, he was a vei 
man biefore he came there ; and 1 d 
witness may tell you what condition h 

Smith. In the month of April, 1722 
in a weakly condition. 

Mr. Just. Page. Mr. Huggins, I a 
mityou into that evidence. 

Huggins, I desire to call peopl 
character. 

Mr. Thomas Ame sworn. 

Huggins. He was chief moumer to 
desire he may acquaint you what rel 
vras to him. 

Ame. Edward Arne was my nnde' 
know that he was in prison ; he lay sc 
at an officer's house, and from thenci 
moved to the Fleet. 

&sggm* WheA did y oa go t« tiitt 




t\e Murder of Ed^^ari Arne. A. D. 1729. [350 

ttflierp in my conscience, be would not hava 
been guilij of Ibe cnielly laid lo his charge. 
RoUrt finer, PSq.KiTorii. 



. — doy« Wfore lie ilied I 
. . eiiquiKd for liiro, and lliey 
locked ufi, Biid directed me lit go 
■■ Terningbsm'sraan. 
^—.^ — door shut ? 

irK. It waipadlocbeil; belly down at the 
mk ff Uia loom Dear the door, aod I found 
•a* nvt alioiil him. He koew me, and look 
Mti the biuid; be wu then very ill, aod 
«Mdlwdty speak. I asked him, what hbs 
tewt of bis rin^, sesi, (^Id-headcd caae, 
iM Mtcr Uiing* of laluef lie spoke very 
failj I wilk much dilltciilly undentood l>y a 
tmt mm mrI tlicu, that one SearU, a mercer, 
Wm tome ttf them ; aud afleriratdB upon 
«fi>y Tinmit, that be bad hia gold walch, 
•Wl he biid lent tiim Iburleeii guioeai iipoo. 
AifpjtL Did be make any coru|iUiul to 

Jrot. He was not cnjiable of complaining, 

Btfpnd. What slate of bealLh wai he in 
Un* be csoM there ? 

Art. 1 belicre be wat in a waatiug condi- 
im bdare be wat arretted. 

in. Otm. Did you bear any complaiot u to 
thkM(>n the ftronf; ruoin ! 

A» By bim I did not. 

JItOn. At Ibe lime when you came la 
ttlia, wai (be room in a condllion lor a tick 
•TtPtfliBaaP 

Jf^ I Miete it wai not fil for a tick or a 
wlHan to lie in it. 

Jtt. Cen. How long do you think jou 
MU h«>a liTcd if you hod (mcd confined in 

ir^. I coold nol bare lived six or leven 
itjigWdiiHild not believe any man alive could 
4*Aac«x orieven week*. 
Ja.Citn. How oflen were you Iherer 
Arm. I nevev Mw it but ooce. 
JU. Gtn. Ita you think you could have 
M tUn tLX weeb f 

Jmt. I tJiiuk I could not live six weeks in 
ttMiiU titv or cundle. 
My Ion!, I desire to call some 

Hr. Jbu. J'«^. Tbnl you may do if vou 
tekfii. 

Sr CtM'g* OmiuIch, hart, sworn. 
Sr C- Ofrndm. My lord, I have known Mr. 
BanlBa akani nine jeara, bm have bet'n more 
MnSdwl* acqiuininl wilb bim these four or 
kvcyeantait prntl ; I never took him lo be an 
M MlMul or barlnmiis man, and do not believe, 
vinUftj, ka would do an inhumane thing to 
ny aar. 



irMti HittdtCoii 



a, liart. sworn. 



Haffuu. Pray gitu un account liow long 
}«iba*e known me. 

Sr /. CmIm. My lord, I have known Mr. 
IqpfWa atoail font or tltc year*, and hate bad 
«in«M ■■ h« a ipiiMl deal wiih bim. I lielierc 
Wuhcfood-aaluraJ, bunaoa mao ; and 



Finer. My lord, I have known Mr. Ifugginf 
ever since I can remember any thing at tdl, ha 
bas been concerned lor onr family tlieae forty 
or Sfly years, and I lived with him two years 
together ; and I take him to be a good-natured 
and humnue man ; and, in ray conscieni'?, be. 
lieve be would not be guilty of a cruel thing W. 
any man. 

John Hedgeii esq. swom. 
Bedga. My lord, I have known Mr, Hii^. 
gins about six rears, and always took bim Inr 
a good-nalured and humane man ; and hsf* 
since had an opportunity of knowing sereral 
instances of lus generosity and good-nature 
wilbonl fee or reward: 1 have known bim six 
or seven years as a general ncquain lance, and 
he was very good natured and humane ; and 
some time since I have known some iustaoccs 
of great generosity and good-natore, merely 
for the pleunieol doing good, without fee or 

John Knighl, esq, sworn. 
Knight. Mv lord, I have knotrn Mr. Uug- 
gittslliese ei(|ht or nine years past, and fre- 
quently had opportunities of being in convema. 
lion with faim, end I always took bira to be. at 
far as any man hiing Irom doing any! thing 
that was cruel ; and always acted agreeable to 
the character of a humane man ; and 1 am 
very sorry any such thing sbould ke laid tu hit' 
charge. 

Chritlophcr Tiilton, esq. sworn. 

TilUon. My lord, t have known Mr. Hug<r 
gins these five-and-thirty years, not super&< 
cially, but in narticular friendship, and have 
(bund him in all instances a man unblamable; 
and 1 never saw any thing lending to cruelty 
or ill usage ; and have alws" " '" " " ' ' 
far these ibiity-fire years. 

Major Churchiit swom. 

Major Chtirchili. My lord, I have known 
him these fuiiy-fiTe years, and have had fre- 
quent communication with him, and alwayf 
found him a friend and a roan of humanity, 
despising of money ; there was one thing, in « 
most particular manner, I will acquaint yon* 
lordship of 

Mr. Just. Page. I can't admit you into ft 
pailicular character, but you may go en with 
a general one. 

Major Clturchiil. I never thought him ca- 
pable in lb ought, word, or deed, of doing a 
cruel thing. 

ThomiuG'tbion,t9t\. sworti, 

Oi&jnn. My lord, 1 bave known Mr. Hog- 
gins for tbeae seven or eight years past, and 
lound him lo act with gawl-Dature, lultgrity, 
hosaw, asd bspsauitj, ,.l 



always found him 



351] 



S 6B0RGE II. 



Thft Rer. Dr. Fttru (Hector of St. Mar- 
tin's in tlie Fioktoi afterwirdt Bishop of Ro- 
chester,) sworn. 

Dr. Featxe. My lord, Mr. Hugfpns is a 
Teatry man ; and I have had naore uarticakur 
reason to converse with him freqaeoiiy on that 
account, and f ne? er found any tbinff in him, 
that was any way consistent with wnat is laid 
to his charj^f and have constantly foond him 
at church. 

Edward Thompton^ esq. sworn. 

Thompum, My lord, 1 bare known Mr. Hugf- 
gins these seven years, and have had frequent 
experience of acts of his friendship snd jfood- 
liature, and never discovered any thing m bis 
kehaviour, but the utmost good- nature. 

Thomas Wotfari^ esq. tfworn. 

,Woo4ford. My lord, 1 have known Mr. 
Muggins many years. I have been with bim 
both sober ai\d mellow, and never have dis- 
•avered any thing barbarous or cruel in him ; 
and I verily believe he could not be guilty of 
any such act if he knew it at all. 

Jmeph T^^loTf esq. sworiK 

Tt^lor. My lord, I have transact^ a great 
deal of business with Mr. Hu^ns, and wtud 
him act with candour. Sometimes I have been 
oonctmed against him, and sometimes with 
him ; and, ir ever I bad sn9|iected any thing in 
him tending to cruelty, 1 assure you, my lord, 
i would have shann«l bis company instead of 
seeking it, as I have done. 

Martin Bladen^ esq. sworn. 

Bladen, My lord, I have known Mr. Hu^- 
gins many years, and have lived by him m 
the country tliese eight or nine years; and the 
character that be has had is, that be is a good- 
natured, himiane man ; it has been his whole 
business of life to leave a good character} and, 
therefore, I canU believe he wouM do an ill- 
natured act. 

John LadCf esq. afWwards sir John Lade, bart 

sworn. 

Zaifs. My lord, I hare known Mr. Hog- 
glns ibese forty years^ and have seen a great 
aumy kind, compassionate things of him. 

Sir CharUt CoXf kut. sworn. 

Sir CharU$^Cox. My lord, I have known Mr. 
Hoggins these forty jrears, and have had fre- 
quent dealings Wi^ him, and alwavs observed 
him to be a man of charity and hnmaoity ; 
and I have ooofted bis company from the good 
•pinion 1 Ifave Irad of bim, and don't brieve 
that he would be guilty bf any inhumanity. 

Bimttd Hakty, esq. sworn. 

Batey. My lord, I faaTc known Mr. Bag- 

■tar tbirff jraars, and have been oonver- 

#liii bitt, mi UA dbdftrvation I have 

•f hiui i% thall bav* fbind kirn Mdoua 

4 



IS 



Trial qfJohn Hugpns, 

to do good offices, where bo had 
reward, and never found bim coveto 

Sir Jamc$ Thomhiilf knt. sw 

Sir James Thornhiii. My lord, 1 1 
Mr. Huggins for these twenty- five 
I was pro»d of the hononr of nis ao 
I have never seen or heard of the 
act that he has done by any one 
was to repeat the instances of gc 



t 



Mr. Just.Pa^e. Sir, you can't t 
to do that. 

Thomas Martiny esq. swor 

Martin. My lord, I bsTe known 
gins these thirty years, and that he 
great many kind and good natnred 
never knew him a vain man, but th 
throBgh good-nature. 

Colonel ^^gui sworn. 

Col. Negus. My lord I have knowi 
gins, a great many years, and alw 
upon bim to be a good-natured man 
it was impoanUe to think be coul 
natured an act, as laid to his charge. 

' Campbell, esq. swor 

Campbell. My lord, I have knowr 
'ns irom fifteen to twenty years, a 
und bim behave himself with int«| 
profession, as a good natured man, a 
thought his genius far superior to 
natured thing. 1 always bad, and 
good opinion of him. 

Hoggins. My lord, it appeared to 
shin, that Mr. Oybbon was the actii 
ana that Barnes was bis servant. 
No argument can be drawn from th 
not sitting, the custom of the place is 
but as to sny application to get 
Bethlem, that, my lord, can't be ap| 
gualemts warden, for it woold be oa 
good-natured act: If Barnes put hii 
not my servant; if so, then the 
roust fail. 

That as to the witnesses they wen 
and they are natural haters^ of their i 
I never went to the prison* but li 
dred people about me, and I must 
seen by many ; there was no preteM 
any barbarity lo any man, nd uione; 
torted : and when J could no way bi 
by it, no one can think, my lord, J 

g guilty of murder, where no wnefit or 
y it could arrive. 

Mr. Louden, my lord, who had the 
the man, and had the key till three d 
his death, had never seen me there ; 
that had the key did not know of 
there, who shoufd P 1 . shewed, my 1 
was out of town in September, anc 
waa out of town till the 14ih of C 
that it was impossible^ that we twc 
there togetlier. All the other witm 
bttve beev called agaiist oatiwoiik 



353] 



Jbr the Murder qfEdxnard Ame* 



A* Di 170* 



[354 



Up from that day to this in prison, had they 
B^ hut tbor hononr, or kMt their desimis. 

I BCf cr saw the man, nor beard there was 
■ch a prifoaer, and to morder a man for no- 
thiif , God Almighty knows there nerer stood 
a au at this bar with more innocency than 

fle^ CJkahire. It is plain on the king's side, 
Ihil a sahjcct has been murdered ; and what 
Mr. Hi|giD8 has endea?oured to show is, that 
ht Kicr acted, but had a deputy, and that de- 
fif vas aooouDtable, if any body, for he had 
M acfnaintanoe of this thing ; your lordship 
hikeanl the witnesses, and J don't doubt but 
ti relate the e? idence fully. 

1W Counsel for the Prisoner objected to Mr. 
ftijeaat Cbei hire's replying. 

llr. iost. Fage, I am of opinion, brother, you 
cntrepljr. 

8er|. Ckahire. But 1 may say something 
livlMt baa not been gi?eo already in evidence. 

Ati, Gca. Mr. Huggins endeavours to shew 
Ail GjrbboD was the acting- warden. No, my 
M, aehher by a lense or deputation Gybbon 
smM aoc be appointed warden. 

Ir. Just. Page, Mr. Attorney, I cannot admit 
}M to enter into any reply, but if you have any 
tnlflHe you may call them. 

Elijah Beavii sworn. 

AtL Gem, Were yoi\a prisoner in the Fleet, 
ii*aycarl7«3.^ 

BsBMff. Yea, and I had the liberty of the 
nisi, hi the year 1793 ; and in the year 17S4, 
lomsntitled to he cleared by the Act of In- 
tfbeaey, but hecaate I could not give the 
vaiiu money enough, was continued till the 

a 1725, and I usmI to see Mr. Hopkins at 
v's, where Gyblion kept his office, and it 
■M ffeoerally accepted by every body, that 
jftafas brought directions from Muggins to 
GjhoB every Jay. 

Aii. Cen. Have you heard Hopkins say, 
te be bad directions from Mr. Huggins to 
Gjbboo, and that he came from Huggins. 

Beans. 1 did not hear any particular di- 
RctioDa. 

Rickard BUkop sworn. 

Alt, Gen. IVho gave directions, as to the 
■uagrment of the ^ol ? 

Bithop. The particular things were done by 
Roijgins'a directions; but the common things 
vitboot. 

Joteph Johntcm sworn. 

Ait, Gen. Do you know of any directions 
WaKbt from Mr. Huggins by Mr. Hopkinsi to 
Kr. GybboD 

Jckiiom, I have heard Mr. Hopkins say, that 
kcaoM from Mr. Huggins, and that he bid 
bacoine every murniug to him ; and that one 
tae Mr. Hoggins sent word back by Hopkins, 
te 1 should be locked up. 

Uwrrf HugheSf esq. (a member of the House 
of Commons) sworn. 

J^tt. Gen. Sir, what have you heard Mr. 
VOL. XVII. 



Hoggins declare, as to the acts he did doring 
the time Oybbon was his deputy f ' 
Hughes. My lord, it appeared to me 
Mr. Baron Carter, Sir, you are not to tell os 
of what appeared to you, but what you know of 
your own knowledge. 

Hu£he$. My lorS, I can't tell how knowledge 
should come to me, until it appeared to me. 
(After some pause Mr. Hughes went on.) 

My lord, Mr. Huggins was ordered to attend 
the committee, and while Mr. Huggins was 
there, he was asked, what escapes had happened 
during the time he was warden ? He said, he 
could not give an account of them, there hail 
happened so many ; but said, that Oliver Read 
had escaped, and when he was taken, that he 
Mr. Huggins had ordered Corbett the tipstaff to 
nut him in irons, which were sent for from 
Newgate by his, Huggins's directions, and 
owned that he did it by virtue of his authority 
for an escape ; this confession Hogeina maiie 
himself, and owned, that he had paid 500/. for 
such escape that Read had made. 

Mr. Baron Carter, Was it Mr. Huggins or 
Mr. Gybbon ordered him to be put in irons ? 

Hughes, 1 did not say it was BIr. Gybboa 
bid him be put in irons, but it was Mr. Hug« 
gins, and that he ordered him to be put in irons 
as warden, and in all escapes he acted as 
principal, for he |mid 500/. for that escape. 

Mr. Baron Carter. About what time was 
this? 

Hughes, It was upon the first escape that 
Read made ; it was in the year 1726, that Read 
got off those irons, and made his second escape^ 
and was re-taken ; and then he was put in the 
dungeon. 

Mr. Baron Carter, Was there any particu- 
lar time mentioned ? 

Hughes. I have recollected, and it was in tha 
year 1726 ; what points out the time, is Read*s 
escape. 

Seij. Darnell. That paper produced by Jef- 
freys amounts to a. lease. 

Mr. Just. Page and Mr. Baron Carter, 
Whenever an agreement is made to make a 
lease, that can never be esteemed a lease* 

Proclamation was made to keep silence. 

Mr. Just. Page, Gentlemen of the jury, this 
is an indictment against Mr. Huggins the pri- 
soner at the bar, and one Barnes, tor the mur- 
der of Edward Arne. The indictment ia in- 
deed ])arTicnlar ; the indictment tnkes notice, 
that Hu^ius was warden of the Fleet the 1st 
of October, in the late king's reign ; that he 
being warden, had the government of the pri- 
soners in tbe timA that Barnes was an agent of 
his, who is Aefi from justice, it sets forth, 
gentlemen, that Barnes seized upon the said 
Arne, and carried him to a place, called the 
Strong K(K)iii ; and that Jlnggins was aiding, 
al>etting, nnd assisting in carrying him to that 
place, anii he was continued there the space of 
six weeks ; that this is a place of cold restraint, 
and u room newly built, made of brick and mor- 
tar, very wet and until to live in; that this 
I S A 



555] S GEORGE IL 

Barnes did oontiiiu^ him in this place for six 
weeks in a most iMtrbarous and vile manner, 
and not allowed him any necessaries, iosorauch 
that he had no chamber-pot, he was without lire 
or ftre- place, and liad only a little bed. This is 
the nature of the dungeon. It is a vault arched 
over, and in the wall a little hole big enough to 
put a quart- pot in at. It is built over a common 
sewer adjoining to a laystall, where all the dirt 
and fihh of the prison lies, which made it not 
only so noisome, but very unwholesome, that 
the continuing this person so long in this place 
was the occasion of his death. That Mr. 
Huggins was acquainted with it, bnt shewed 
him no favour ; he was not let out, and died in 
the middle of October. He died, gentlemen, 
by this duress of the prisoner. I will say bnt 
little to what the law is in this case ; a prisoner 
for debt is only taken like a distress, and kept 
there till he or his friends can pay the debt for 
him. Imprisonment is no punishment, it is not 
taken as part of the debt ; for let a man lie ever 
80 long, his heirs at law cannot be exempt from 
the debt, but if thev have effects, are answera- 
ble for it. He is kept only iu such manner as 
he may be forth- coming and safe ; this being 
the case, he is to be kept in here in a becoming 
way, as the warden may be safe, and the 
prisoner forth-coming, nut in no other de- 
gree that the prisoner should be punished, by 
any unreasooanle restraint. If this Arne was 
kept in no other way than became the subject 
of the king, in that reasonable manner, so 
that yon may take it, there was no torture, ill 
usage, or any act, but such as was fit and de- 
cent for conhnement, no duress ; then and in 
that case, though he died there, it will not be 
munier. 

But if by the evidence that has been called, 
it appears that this mom was an unfit place to 
lay tnis man in, that it must be the means of his 
destruction, that (being in such imprisonment 
as the gaoler cannot justify) will be duress ; if 
they carry that point, it is part of the common 
law, the ancient law, and very rightly observed 
by the counsel, that it will be murder. It would 
be very hard to take away this law, though in 
his own defence ; as be wns entrusted with t!ie 
life of the king's subject, he was answerable 
for him, and the coroner's inquest ought to 
have sat unon his bo<ly ; the law is*so much 
afraid of the loss of the life of a subject, that 
tlie king will have an enquiry to see what is be- 
come of the life of the prisoner. It was opened 
by the counsel for the king, that it was wilfully 
omitted ; on the other hand it was urged that 
this custom seemed to be asleep, and that it 
was hard to lay a great wei'^ht, where it had 
not been so long practised. Gentlemen, there 
have been great numbers of witnesses called, 
and therefore I cannot give it word for word, 
but will repeat as far as is necessary. 

Mr. Longborn was called to prove the first 
part of the indictment, that Huin^ins was war- 
den ; and he proved the copy ot the letters pa- 
tent granted to Mr. Huggios, who might act by 
himself or deputy. 



Trial of John HttgpnSf 



I 



Bigrave gave an account, th'at Hiig| 
patent bore date on the 25th of July, ii 
ISth year of the late queen ; that Mr. Hog 
though warden, did not act himself, but 
pointed Gybbon as deputy ; and that seen 
were4aken by Huggins not by Gybbon, tl 
to be considered in fioint of law, that tb 
must be brought against him as warden 
the making of a deputy does not dischargt 
of his duty ; in several cases be doea not 
tinue answerable, for iu civil cases the dem 
answerable, therefore the security isr lo 
with him. It is a very strong eviileooe 
the wai-den still continues warden, ihi 
ought to see to the escape of prisoners, foi 
is not only trusted to the honesty of the 
den, but be is to take the best care be a 
escapes. He says, that Gybbon did bu, 
place, that he did oversee and look afiie 
aifairs of the Fleet, and filled np several 
rants, but always in H uggins's name ; tbi 
did apprehend that Barnes was only a se 
to Gybbon, and that Gybbon, no doubt, ba 
immediate trust of the gaol ; and that Bi 
was a runner to Gybbon, and not Hugg 
servant. He agreed what this place was ; 
it was arched over ; that it was eight feet i 
eleven feet lon^, and nine feet high ; tl 
was built very little time before Arne was < 
mitted there ; he could not describe the v 
situatiou, but gave an account that it was 
nigh the dunghill and filth, had no cbii 
nor chimney- place, and had only two 
holes to let the air in. He gives an acoou 
Hopkins ; that he looked upon Hopkins 
Gyobon's servant, besides that he was dc 
Mr. Hugs^ins at his house in St. Martin's- 
and generally went backward and forward 
days to Mr. Huggins, and was able to give 
an' account of what happened in the g^ol. 

Hopkins tells you, ne was Clerk of th 
quiries, and that all the security -bonds 
letl with Gybbon, but left in blank ; and ' 
he had enquired into the securities, the sect 
bonds were filled up by Gybbon ; that Qj 
received all the money, and he heard that 
bon was to pay 400/. per annum for it, but 
all went on in the name of Huggins. 

Bishop says, that he was tipstaff under ] 
gins ; that he did pay for his place, whict 
him 300/.; and that about 1724 or 1725 
was brought a prisoner first, and was carr 
the Vine, and tuere continued about a m 
and afterwards was carried into prison, an 
with one Shaw, and upon a quarrel was li 
out, and the strong room was built at tlie 
end of the summer ; and it must be gra 
it was not fit for mortal man, scarce any I 
to be in. Gentlemen, this room is totally 
for any roan to be put in ; and that it 
strongly proved, that from the nature ol 
place, and the circumstances of the weatb 
was the occasion of his death ; that it wai 
built, not almve three or four yards fron 
dunghdl, and that every thing of nature 
done in it ; there was no chair, no prov 
only an old bed. That he saw him before 



Murder of Edward Amg. 

Barnes came 



tjtf (bout tilled in the comnDn-yBrd, aad 
«pM lliii •Ed tdl GyltboiiorbJim and tbat il w 
Ml di for Uie (HKir inui lo be left alone, so 
«H OtUt For liiiQ lo ^ In Betblcbeni ; and 
WjBOoafUr lUe man waB|iiil inlo llie strong 
mn. Tn ga along witb Mr. lIugginB, I muni 
likkaiMicc uraiioUertation lie made 
m •«« unfit I'ltr a man to go naked ahoiit 
^■|lEi«rv were wotucD ; and il wa» lit he 
dadUb oalined aomuwbere, lie (s]>eakiDK 
rf bkaft) give* snnie nccouul nr Barnes, ai 
^WtocuuDl wb«Q lb« roomwaa built, jiut 
VklMr eudol'tlieyear; itiat he did hear he 
«itn a my nild canditioni tliat Barnes 
^m v/ tbnu dill npiirelieoil Gylbnn lo h 
4r«A powvr i but Ibnl Gybboo acled hy the 
li^ltity ofilf. Ilii^gios; bul thai beivouid 
i|flf to Hr. H ug^a about it, and did ask the 
•■■■aet i( it wat not proper to gel hi 
hwhhfcwB ; aod HuggipiolMErved ' 



raf ibc office of warden of the Flevt, but 
ni^l br a friendly office use his interest 
«M Ui. Tajlor, and Ihat would ehew him 
»««kliaouiie man than one guilty ofcruelty. 
Vfcf* aoT ibitig special hapjiened, thai waK 
tHdMMbv Clug^ins', Ihat tliough Arne was 
b iktl codililiQn, thaui;h there was no occasfoo 
«Ua*rJ, and uu cause for putting him inin 
ftanoni, Hu^iiit not otily a principal, {vho 
il iKoirablF lor his ileputy, wai ofien in the 
lbl,aiu]aair liimaereratlimei whilst Gylibon 
««4i)>uiy,aiid Arne in that coniinemeol, and 
Mgne iinlfri abnul several thint^ of moinenl. 
Ifwdabnew (fu disordered, hut never did any 
N IhiBf to pot him in ftar and hazard ; the 
mm an« Jid any hurt, he mlg-ht drink, but 
talkn* wereotlierronnislo |>ulhim in ; no 
ffeveMilH lie found to |>ul this man in so bad 
MIA*. >Vbea he wa* turned out frnm Shaw 
WW ■ liille place that he put up in the coio- 
»•« luli, aiid his Eooila were carried down 
IWn. It ins very hard lo imaifiiie, if he was 
■M *«r* well, if be wni a liltle distempered, il 
na 1 FT)' (t ran^ thai no place could be found 
Wlb* tirvnfc room to put hiui in. VVheo I 
■Mcla uk the queatioii, if there were other 
■Mm «bri« it>« uian might be kept with 
^tiy, il waaMid, ihat th«rewereroauis where 
ha tui^t hf put in fliiMy ■, but it was not 
AMgLt fit he sJiuahl go into a place fil lor a 
ChiMian la tff* in, bul iulo Ihia plactr. 

Mr- (.^«4i0D. by the Umk. shews, hewaa td- 
at » t\ a \M\*oaet on ineane process in M2i,\o 
A^fce did nM rajiiir,.' Ui M kept in the same 
Metan* ■> on ■xrciilioii. The cate of the 
farfw H la kreji snalu cuiluily, liul not so ^cal 
■• antxie iwaeoi ; if a man in eMCuliun liir 
IMCii, wai to eicape, he must pay the whole 
: iHiacuniigt dcblhnoQiiieiineprocessi 
K*«(wit«ris sm aiiHwerahle. the ^auler 
** -W ftf Ibo irbt, ihe ((auler is n" tunher 
"tte ibaD for Ihe perion ; to that ilie 
■ AM •» K'MI. the daDner wni nnt la 
t inay he Uie reason that the 

tm, hn-aBO the Uaxard is not so ijreiil i 




A. D. 1729. 
and thai he wii ■ 



M^ 



.tchmau 
Ihere. 

Farriiigtnn apprrbends, that Aroe came it) 
about Ihe middle of June, and thai he was in 
good health when he came in, and that be 
jievei knew him do au ill tliii]«r. uoi' that he 
iiould drink ; that there wna no danger of hi* 
breaking priinn. That he was i,ut into the 
etruuf; room in Septemlier, and conliuueil 
Iherein till the middle of October. When he 
first Cftone into the prison he lodged wiih one 
Koberl Shaw, and Shaw threw his bed out of 
■he room ; he then put bis bed iipoD a settle, 
>nd he lay therelill he was carried to the Strong 

He did uot fee Arnc locked in the Simng 
Aeom, bill did see him taken away, and tays, 
that the room was Dot built abo^e six weeks 
before the poor man was carried there. That 
it wan m very wet, creen, and so much outing 
from the marlar, that one might witb oue'c 
hands strike Ihe drops off the wall ; and gate 



Alhei 



r, that it 



not tiled lo, and be was contiuued there from 
the middle ofSeptember, to the middle of Oc- 
tober, end lay in a miserable condition, not only 
having his own excrements slicking about him. 
bul the fe.ilhers of Ihe bed, having opened U 
and crept rato it for warmth. I need not take 
notice of the silualion of Ihe place, ihat has 
been fully desciibed. There were only two 
Biiiall hole* to )el in Ihe air, there was no fire, 
nor fire-place. He says, ihal ufu-r some lime 
the poor roan grew hoarse. One of Ihe wit- 
nesses aays, iTial be had a shivering hoarse- 
nea, andso continued hngeringon till be died : 
before he died he came lo a bad hoarseueM, 
anrl his senses and voice were so fair gone 
afierwnrds, Ihat be could not speak ; tlien 
nature failed, befell away, and death grew 
upon him, then be grew delirious, and in Ibii 
poor condition he had noihing bul a feather- 
l>ed, which a gentleman bad lent him, laying* 
in the dirt in bis own excremenls, and in k 
nasty condition, and no way left lo preserve 
life, but to cut his bed open, and lo lie in tha 
feaihera as long as he cuuld : being in thia 
■nisnable condition, he came into the church 
more like a fealliered lb»l, than a human 
creature, Ihat the featbera stuck all ahuiit 
hiu) ; be burst nut and came to the church ; 
lie was remanded hack again, aud had no oom- 
totlor relief. Farringlon, oneof ihecvidencei 
■ays, Ihat he saw Hopkins and Uutfgiusal ihe 
iloornfiheHlrong KiHim.and the door tvaiopeq, 
nnd Hugginti looked upon him. aud Hopkins 
and Muggins whispered, aud talkod uigeiher, 
but he uas nnt near enough lo bear nbu 
was said, bul HiiKg>u> shook bit head ; not 
only Gybhon bni Huggias himself locked him 
up, with Uames, aud Ibis ivasal Uie lime whto 
the door was open, and Barnes ktpt ilie key. 
Il was when the door was o|,en, and Huggiiia 
looked in upon him, thediscuunie you will biiit 




SSgj S GEORGE II. 

Hiifjfeins knew of it then, and then might hafe 
saved his life ; he might have taken the proper 
care as he ought to have done of him ; if Mr. 
Hug^ins had flone his part, it would have heen 
no onjection to Huggins, and if he difl nothing 
at thai time, you will judge how far he did pity 
the roan, whether he did know of it before or 
BO, if he was privy to his being kept in that 
dui-PFs. he had sufficient power, and nothing 
could bar him of having the superior power, 
for, in the presence of his deputy, be might 
act; he that put the man under duress uot 
only was told of it, but saw the misery of it ; 
it makes him in law a priucipal. That place 
was so damp, that he himself was in there, but 
three days, and was almost killed in that time. 
It made his legs swell, and he had been dead, 
if he had continued there longer. That man 
died therefrom the noisomeness of the place. 

Fulthurpe says» that Arne and another pri- 
soner were drinking with him a pot of ale (that 
gentlemen, don't create great anger in the Fleet.) 
The witness says, that he paid five shilfings 
per week for boanling, and Barnes came up 
and seized upon Arne aud carried him away, 
but he did not go to follow him ; that Ame 
'was very quiel, and he went the next day to 
see how it was with him, and there were loose 
boards, which he apprehended to lie on the 
common sewer, and the walls were all gieeu 
and wet, and that it was a miserable place : 
that the man continued six or seven weeks in 
this Strong Room. 

He says, that he saw Huggins come twice 
into the Fleet, while Arne was in the Btroug 
Room, but whether it was the time that Far- 
riugton was there can't be certain ; but that 
Huggitiii, Hofikins, aud Barnes were there, 
and were luokiner u|)on him. When he came 
there a second time, he can't say that Hug- 
pns came to look on Arne, for that he stayed 
there only half an hour, to take care of the 
prison and prisoners ; that Arne was in health 
at, and before the time he was put in there, 
aud that he went to give him some drink at the 
hole, and the stench of the room was so great 
that it was liLeto strike him down. He says 
that to the best of his judgment on viewing 
the place, that it was itiipossible for a man to 
live there. He did see Arne out two or three 
times, but they turned him in again. 

Smith says, that Arne, for whom he had a 
great concern (which matter is of great conse- 
quence, that requires the utmost attention), was 
carried to the Vine, and then carried to the 
gaol ; that Barnes, who was a servant to Hug- 
gins, as Ame was drinking iu the cellar with- 
out being the least troublesome, seized upon 
Arne, and carrietl him to the Stroug Room : he 
lay upon the bare ground, and had nothing to 
rest him upon ; the description of the room that 
he gives, is, that there was no fire-place, no 
candle, nothing to ease nature in, such a stiok 
that he was forced to hold his nose, extremely 
^ret| and in no condition fit for any one to lie in ; 
he havug no credit with Ojrbbon, wrote to 
Hoggins sersrd tettersi and in one of them 



[96C 



Trial of John HugginSf 

mentioned the said state of Ame, and sent it b; 
Robin the porter, he sent it by the eossiiwi 
porter, but did not prove that RobiadeKvere 
the letter to Hoggins, or brooght ab answei 
and was of opinion, this barbanras treatacs 
was th e death of the poor roan . 

RoIho was examined as a witness, be said h 
did not know what the letters were : he 4k 
what he was paid for, but can't take upon Im 
to swear, whether the letters were delivered I 
Mr. Huggins, and what tiie coatents of Ik 
letters were ; there is a chasm in that psif 

Paine savs, that Ame was in a good strt 
of health, that he might drink, butliiers wa 
no ground or occasion to put him in the stieq| 
hold, that Barnes was servant to Gybboe, asi 
that Gybbon acted as chief* wanleo, and Ihi 
the prisoner at the bar did not act. He gan 
an account bow the room was built, that it wii 
very damp, that Arne grew iKkarse, and lost hii 
voice ; and he believes any person ooiUd not k 
there without danger of losing his life. 

Bouch says, that he wus turnkey , and gsn 
an account when the strong room was Mill, 
and apprehended it was built by Huggins; Ikil 
Huirgins did come to the lodge, but can't my 
whether he came into the prison or no ; M 
says, that the poor man died after in Odsbsr, 
and that he carried a letter to Mr. Hoggisii 
wrote by one uf Arue's friends: that be gave it 
to Huggins, \\\\o ofiened it, and reed it,wbi 
said, that he must leave it, and Mr. Hsj^ 
gins would acquaint him with the nature of IM 
rules ; he further said, that Mr. Hogffins M 
not act singly and solely, and I don't ksse 
how iiuleiMl he could, 1 dou't know bow bs 
could controul a piincipal, he might oas- 
trout n deputy; he says, he did apply N 
Mr. Huggins' to be turnkey, and was vcr) 
often in the prison, and saw Ame, and gave ii 
account of his being in that lanffuisbing osa^ 
tion, and that he died there ; the chief of hi 
evidance is, that Mr. Huggins came often I 
enquire about the affairs of the gaol, and thi 
he was still principal warden, and if any tUni 
wrong was done, he ordered it to be rectiM 

Tucker was emplo3'ed to make the iron wsril 
but don't s:iy by whom ordered. 

Mrs. Le'Pomtz says, she saw Ame in lb 
Strong Room, and when Mr. Huggins wi 
last there, she saw him on the Bare, and llu 
he could not come in or out, without conii^ 
near the strong room, and that it was imposaU 
for him to go out upon the Bare, but In gob 
that room. 

For the prisoner, he does insist upon acfwi 
ways of making his defence. He says tbis m 
in 1735, and therefore it is not to be ezncdsi 
that he can give so good an account as if it hs 
been a more recent prosecution ; tbb IfaiB 
had slept for three or four years. It was tabi 
notice by Mr. Attorney how this came now b 
a strict examination, and a very honourable em 
snd that he mentioned was the icason it eid 
not esGspe the eyes that were so diligent ; ibi 
is the answer to that ptrt of the deflnee: Mm 
ether part of his defwee ii| whelliir ki «m 




far the Murder of Edward Am 



A. D. 1729. 



Hm wtlh Mr- GyliboD, who, tie 
G* anle inaiiD|[«inent, he wm vi'ti- 
piH himidl' into a stale of iii»rti'iu. — lie 
iitgrvr It fini fW l)>e |iri*oti only (ut hall a 
nv, aud thrn Ojilibon, willing In lake llie 
■UttMita and proBU, waa tu nay togelbet 
mULfK tan. wliich wSB aurrrd on. Ano- 
I Wpw «l ht« dcTpnce lliai lir mnile. wbh, ilitit 
b Mru*l«)l Mr. Gybbon willi the rnanaee- 
■■taf ike uffice ; [le Imil to little knowMire, 
Mbeh>4 Mrvrrawnnor hrsnl ur lliu oatiie 
tf InMt, nor never knew iliat ihere u as auch a 

A w ilh L T tDaileriiittsleJiipoD, that tlierewere 
tat «l(nat««, Ihal were all tnistahcn, bdJ 
•atMcreitil U all ought tn liegiv#n lolhein ; 
■J h won't be terj' lualerml. Some uf his 

kter lb«T«. enj ollien that he naa nnt U 
UoM, lookine upun ir. thai be wus not cou> 
vwil at all. 1 o prove tliia he calls tvilDesaca, 
■inUnl itt. Tanner lo read ilic laaolvent 
to, ikai itrputieB were In make rcliirna of pri- 
■■ars. To jiroTe the till of Ihe prisoDera was 
mned Uy Mr. Oyblmn. be wouUI have pro- 
tari an afidnvit. bul il wh<i tiol suffirieut lo 
bpnf. Mr. Tannrr waiaiknl, whelher at 
•eliMatbe list »«i ileliverril, Mr. HucK'"* 
MiMilwanlcnr HeilidnollliinLfilloanswer 
ftu ^iMiltou, and I diil nut preuil very tar: 
it I aludl <l>ew you Gybbnn was only depuly. 
Tkwti wilneutliit HBg called was Jeffreys, 
hikv bow far Gybbon was ooncerat^ in the 
*fct; he wa« by when ihv aL-Tvement was 
Mle,aad M^ncd by Mr, Huggini. and when 
■ CBM M be a queiiion. wbeo that wai la be 
■Od. HirlliFril waa aa aifreement or not, he 
mMoui irll where it was, it wa« out of hia 
fPBir, be CO Id not prudui-e it ihen. Jeffreys 
«id il W3a an acquiliance : upon that tiag- 
pM radeacotirvd lo |,'ct the pu per, and that 
Mm wm a copy nf it laken, and that il wai a 
Kwoipy, tbcn ibkt rreeipl waa proper lo be 
Mrf: MUen llial rime lu be read, you will 
«Hariar wkai il waa; il wm neither leaiie nor 
dtpataliMi, only an avrecment tar a lease, w liai 
MM waa lo W paid, and how long he waa to 
-Iwait. It watarercipl tor ■ depuaittif 1,000/. 
1 ibcrc waa a proper covenant and 
■ (D Iv perliirmcd. I dun'i go to argue 
"") oT il, ifa man had aureed lo hold 
nulil be a tease; 
hnd Bb[reed cer- 
yt«ts, thai woald bare been a 
fitftlM aAc*, aiiil uaufficieot evidence of 
MMn,t(itiliaaolhin)(b>iiao a^reeineai 
fBtoiinn, or a leaae. In ilricttiew of 
• BBlbingi lliuughibia may not be in 
rbw, ti It <iiif)i<'>eut between them lor 
B l« be depul} iu (act. who came with 
I hktnir of Mr. Iluggini and with hia 
; llitl he WBh di'puly in tact dill carry 
b jwi>.aud ihat Hit|{frt»* wh« chief ill tlie 
and had the coutroiil tliereof. That a 
J ia aMilnuaiaUe by ibc jitincipal, aitd 



I wlieD Ihe principal ii there no man can mak« 
I a flepnty to execute the office. Thia waa 
dated 26 June, 17S3, for l,U00f. and SOOl, 
per annum. 
I The next waa Mr. Welland ; Ibete waa a 
] (HMxl deal said by him about ihe coroner** 
Billing upuD drad noilies, not very much lolbe 
I imrposi' ; and then be gave an icoount that 
! Gybbnn did act during; four yeara, but what 
, was l>e«!OrDe uf ihe repaira, who was lo do 
' that, I do not find ; as lo the repairs and taxes, 
I it is mil settled In ihis day. If upon ibe foot 
' merely from the tnisl and conlidepce ono bad 
I of ibeolhtr, if all Ihe e^pences were paid by 
Air. Ilugginc, then be buill the strDnif room ; 
I howAer he was liable tu the charge. You will 
Qonvider, geurteDieo, by what law lliia ean be 
I built i it wBi putting a show of cruelty in thia 
I ofiice. which ibey were no way jutiified to 
' build: things lor torment, and not Ibrlheaer- 
ricenf the rustoily. ihiiursof that kind are not 
(0 he done at the'will of the gaoler, It alwaya 
oukI'I to he done by nrder oftheir auperionr; 
ifinthe city, <li« act moat be done by tha 
mayor and ahlermen ; if not, by the com* 
mun-council: if iuth* county, it la notintb* 
power of tlie gaoler, it must be done by the 
seasioos ; there ate so many gentlemeu of the 
se^iootloaee what is proper to be done and 
decent for Christiana, that Ihere is no danger 
of erecting aoy place of torment I do not 
know what authority either Gybbon or Hug- 
gins had lo build it; Hug^us might bars 
pulled it down, and Gybbuii would have been 
answerable fur the cnniempi. There is oo 
aereemsnt appears between HuKgini and Gyb- 
bon that would clear it up ; betides, as to ibe 
repairs we are lelt in the dark Blili. 

Wetland says, that io Ihe year 1T25, AriK 
was stark oakeil before be was put in the 
strong room. Huggins urved, that it was not 
designed for any such piiriraae. Welland does 
not deny, hut that there were other place* in 
the gaol to |iut him in : Ibis was in Ihe very 
year when the act passed for insolvent debtors, 
when fifty or tixu were discharged 0i> the Tib 
of September, before that time. 

Another part of bia defence is, that Ihe room 
was neither his nor Gybbon'a to answer for; 
that there was a couri of the prisoners, wbo 
formed Ihemselve* into a jurisdiction, and made 
what order and rulea they pleated, and Ibal 
tbey were so trouUesome that GvbboD was 
afraid to go into the gaol : I do not know what 
excuse this is, it would bare been very lit for 
them to have applied to another place: and 
though Welland does say, Ibal there wai a 
reqiieit of some of the prisoners to have him 
put into the stroog room, all Ihe terror this 
man put any body in, was flinging a brick* 
baton the Bare, not aiming at any one, and this 
forced them tu put this man under tha restraint 
of the slrong room- Il waa the request of 
ni.hody, it was nobody did it ; it was rery 
much to hate auch a combination, but every 
body knows that Welland is an attorney, and 
hat beta taken notice of in tUa courla. TIkjf 



XS] 



9 GEORGE 11. 



Triid qfJ(An Huggitu^ 



tS6i 



hiTe oot girco any accouut of any man's 
being put in there before. This man being iu 
m sick condition, \V«lland was desired to go to 
the upholders at Exeter- change, Ihey are very 
compassionate, and do assist people of their 
fallofrsbip ; and he had some relief given 
liim. He says, that he never kneiv Mr. Uug- 
gins give any direction in the management of 
any matters after Mr. Gybbon became deputy, 
mnd gave an account as to the coroner's sitting 
upon dead bodies ; that he took Barnes not to 
bo Hnggins's servant, and Gybbon therefore 
was answerable for tlie act of Barnes. He 
aever ao much as saw Mr. Hugginsand Barnes 
together, and that he did not so much as know 
•ny rule- money paid to Huggins ; that Gvb- 
bon generally was paid -the fees, for Gybbon 
paid 900/. per annum to Hoggins. Whether 
a man takes the fees all at once or not, it is the 
^amo thing. 

Green says, that be applied to Mr. Gybbon 
IB order to have a room, and Mr. Gybbon 
could not go into the gaol for fear of this court 
of the prisoners ; but at last says, that he did 
get himself a room in the house, and did lie 
there ; that be aiiprehended Gybbon was the 
principal, and did act. 

The next witness was one Howard, who was 
a prisoner there before Ame came in ; he was 
fint carried into the spunging- house, and at 
last brought into tlie gaol. When he came 
there be bad nothing to lie on, and Howard 
had a lied to sell, which Ame had a mind to 
porcbaae. Howard, gentlemen, did not give 
an account of any freenesa Ame was guilty 
of ; but that Ame offered more for the tilings 
than he sold them for : whether Arno was not 
in haste for them, or whether offered more for 
them than they were worth, I cannot think an 
aigumeut of madness. 

Woodcock gave an accoont of the poor 
man's being there, that he was let out, and 
after a little time drove in again, and during 
all this time he never saw Hu^gins there ; for 
he should have seen him it he had come. 
Gentlemen, Mr. Huggins put it hard upon 
calling these people. 

Humplireyssays, that Arne was a man of 
some suWance, and said that he did no harm 
nor hurt ; that be did some odd acts, and then 
he was carried and put in the Strong Room in 
the oianner you have beard, and staid there till 
he died ; and never saw Hut^gins there till 
about the midflle of September. 

Louden says, that he keiit a boarding-house, 
and boarded a good many there at 6<. per week, 
and Arne was one ; that afterwards, when he 
came to quit the house and was carried into 
the Strong Room, he was desired by the Up- 
holders Company to take some care of him ; 
that the key was kept by Barnes, so that there 
was a difficulty to canry and supplv him with 
provisions ; that be aaid be would give it up 
unless he had the key ; that he had no autho- 
rity to let him out; and that he did keep the 
key till three dava before ha died, and then de- 
lif^iodjtupt UehMgirevanaoHHiiit^ftbat 



act of Arae's running about with the feathen, 
and said lie never saw Huggins and Gybbon 
there, at the time that Ame was in the strong 
room; and that Huggins was warden^ aid 
Gybbon was deputy. He has given an ac- 
count of the room when built, and of the aul 
condition of it. 

Gentlemen, Mr. Gwyn said the fame; bat 
that he never saw Huggins there. 

Another matter that Mr. Huggins insistid 
upon, to prove the evidence not to be true, wis, 
that he was not in town. 

The first witness that he called was his saO| 
who said, that from the first of September in 
that year his father came down to him in 
Hampshire, and continued till the 14th or 15th, 
and staid 14 or 15 days ; i do not find bat it 
might be after that that he was at the Strong 
Room. 

Smith proves the same, and that he was 
down there before in August. 

Knight said, that he was there in August 

Bird, servant to Mr. Huggins, junioTt wuit . 
that he was there in August seven days ; aid 
that be was there the 1st of September like- 
wise. 

Tucker says, that he was employed by m ' 
Geonre Oxenden, and that he sent hit coach 
with Mr. Huggins from Wittenham to Henlty- 
upon-Thamca about the 15tli of September. 

Sir George Oxenden agrees with the aw- 
vant ; and says, that on the 17ih or 18ih tht 
prisoner came to his house, and went aw^ 
the 18th or 19th. 

I must observe to you, gentlemen, that fiev 
that time to the death of thip man, there mt$ 
account given to you where he was. 

Hopkins gave evidence to shew the wit* 
nesses mistake. Farring:ton swore, that what 
Huggins looked in, Hopkina was with him at 
that time ; and Hopkins said, that be went 
out of town to Oxford, and did not return till 
the 14th of October. Huggins came from sir 
George Oxenden's about (he 18th or 19th, aai 
I do not hear from any body that he amtinned 
out of town ; and it is natural to believe he 
came to town, for Henley is the road to cone 
up to London. Hopkins said, he did not go 
out of town till the S27th of September, ao that 
from the 19th to the 28th both might have 
been at the Strong Room ; and I believe thk 
was the time, may be it may be the 19th. 
Hopkins did not go till the 27th. What I 
must leave to you, gentlemen, is, that thii 
witness said, it could not be true that he and 
Huggins could be together. Thtje were abent 
ten days from the 17th to the 281 h, and it ap- 
pears they were both in town ; and it don 
seem to come pretty nigh the time. You 
gentlemen, Huggins came again a 
time ; the first time does seem lo tally, 
ran very well, if not both. 

Gentlemen, you must take this with yeU| 
whether Hopkins does not confirm what rai^ 
riugton aays, though he said he was out ef 
town. Farrington says, once u|ion a tiuMS ha 
was aft theStning-Roflai doer i the (loorwasey«9k 



Jhfi^ the Murder of Edward Ame» 



A.D. 17S9« 



[98d 



; be did tee the wiinesn, (meaning Hop- 
d that Arne crept into the feathers of hia 
id Hof^int said, that he was there, but 
J not see the feather-bed ; that he was 
sthine half iip aud half naked, which 
p rmttier contimos than weakens the 
e. He (llopktofi) does contradict ano- 
itter ; that he does not know that Mr. 
s was there at the room, or that he 
r him there; that he (Hopkins) was at 
Df^-room door, and that he was in the 
lanner as the witness that was there 
ind he does contradict, that Barnes was 
It of Huggins^ and says that Hng- 
8 not to be at the charge of executing 
ce. Ail that Hopkins says, is, that he 
rk of the Inquiries, and that lie did apply 
Hoggins, and that Mr. Huggins did 
ik fit to put him in, but he sent him to 
I to be Clerk of the Inquiries. But that 
derk to Mr. Huggins at his home, he 
I it ; bnt in a very extraordinary man- 
t be took him to do his business for no- 
He said, that the management of this 
PM not solely and clrarly under Mr. 
t ; bat, gentlemen, as to things of con- 
es there Mr. Hoggins was called in, so 
ippeara that there was a view of his 
after the prisoners; and it was ?ery 
■tlrmen, that he should, for he was the 
Bit upon all occasions. Hopkins sayS| 
t does not remember any discourse 
ne with Mr. Hoggins, but if he was 
be belieres he might do it ; but does not 
ler he was desired to do any thing as to 
It acems, jpentlemen, that he was exa- 
a a strict manner, and a wise enquiry 
8 appears by an examination taken be- 
vani Hughes, esq. which was produced, 
fws, that he had given evidence to you 
r to that examination. In that he says, 
s was warden ; and that he (Hopkins) 
nil the Fleet to liim every day, and told 
s whatever was considerable that was 
Te ; and told him of Arne. He agrees, 
re was a discharge of prisoners on the 
>eptember, 1725, when 50 or 60 were 
^ ; and cannot say, but when they 
oe, bu» that there was room enou'^^Ii to 
le in. He denies that Bishop and 
spoke to him about Anie, which Bishop 

icxt witness is Mr. Arne, who was a re- 
the deceased; he savs, that the ffrst 
be received of his miserable condition 
ot a week or ten days before the poor 
!d ; be then went to sec him, and found 
>TelKng at the door, that he was not 
come hoarse, but almost s|)ecchless: 
crept down and fallen at the door, and 
% dog. He found him, upon o]>ening 
', in a bad condition : his voice was so 
K, that it was a difficulty to understand 
im bad a gold watch, and he did get 
im bj balf words and sentences where 
aad said, that the place was not fit for 
ysie whatsoerer, neither sick nor well ; 



and that beeoukt not have lired a wjeck in it. 

Gentlemen, 1 asked one of the witoeaaea, whe 
appeared to be a very atrong man (Louden), if 
he had been there half the time, would it net 
have been the occasion of his death ? Who 
owned that it would. 

The observation ray brother Carter made if 
very just : that if a atrong roan, being put into 
that tilthy, vile place it would kill him, to pot 
into such a place him that wanted bealtb, 
death was more sure. If he was a weak man, 
there was no danger of bis eacaping, no danger 
of going out. 

As to bis being in that room being tbe occa- 
sion of his death, there need not much be aaid. 

And what ia aaid by Mr. Huggins, except 
one thing, carries little or no weight; and 
there is oulv that can deserve your considera- 
tion, whether he did die by the cruelty of 
Gybbon or Huggins P That be did die bj 
duress, it is not to be supposed to the contrary. 

That in point of law, wherever there is a de- 

Euty ap|iointed, the 8U|)erior must answer ; lor 
ad a prisoner of 30,000/. escaped, Mr. Hug- 
gins must have paid the money. 

In criminal cases I do not think, that tbe 
warden or any other officer should answer for 
murder, anieas be was privy and consenting. If 
this sole act was Gybbon's, and Huggins no 
ways consenting, 1 think tbe murder lies open 
Gybbon, not Hoggins. Though this was the 
act of Gybbon and Barnes, whoever has a band 
in it, and the authority and power as he had, 
if it is true that he saw him, and he would not 
give a helping hand to assist him, the excepted 
rule of Scripture would be true, • That he that 
is not for me must be against me :' and if be 
was any way privy to the carrying him and 
confiniug him there, he must answer tor the 
murder both in this and the next worid. 

If tliis is the act of Gyhbon solely, Hoggins 
is not to answer for it; but if Huggins was 
privy, and be was warden, he could and ought 
to have relieved him. , 

One tbincT more, in tlie latter part of the de- 
fence Mr. H uggins made for himself, wa8,;to call 
vast numbers of gentlemen of the first quality ; 
sir George Oxenden, sir John Hynde Cotton, 
in all alwut twenty he callcil to his character 
and credit ; and if \hcsc gentlemen are not suf- 
ficient, 1 do not know what will be: his cha- 
racter has been fully estaliliHhed ; but I mutt 
observe to ^ou, whatever the character a man 
heai-s, if he is guilty of that act which destroys 
his character, his character goes for nothing : 
if there was difficulty or great doubt happened 
upon circumstances, whether Mr. Huggins 
was guilty or not, then it was the constant 
practice to be govemc-d by a character: I 
think nobiMly can have a better ; he has had a 
very great character given him. 

Not long since a person produced twenty- 
seven |ieople, that gave him a character, with 
no comparison to this, only the greatness of 
numbers. 

Notwithstanding which, it there was not 
doubted, he bad committed the fact; and the 



967] 8 GEORGE IL 

jufj Terj justly brought io their Ttrdict, 
fuilfy. 

Vmicts, in ooiivicting of people, are to be 
foanded apon the e?idence thil the jury has 
had before them : aod I hope 1 do not express 
myself so for them to found themselves upon 
any thing I have said ; for they will determine 
aooordiug to the evidence that has been before 
them. 

Mr. Attorney General produced three wit- 
nesses, that came to nothing. 

I must take notice of one piece of evidence 
given by Mr. Hnghes, a gentlemsn of probity 
and distmction, one of the committee appointed 
by the House of Commons. He tells ^ou, 
that when Mr. Huggins was under examina- 
tion before the committee relatiufi^ to escapes 
daring the time he was warden, Huggins con- 
fessed so many had escaped, he could not re- 
member them all : he owned one Oliver Read 
had escaped, and was retaken ; and that he 
himself sent to Newgate for irons, and ordered 
Read to be stapled down and ironed ; and that 
he owned he paid 500/. to Read's creditors for 
the escape of Read : This was whilst Oybboo 
acted as deputy. 

Mr. Huggins does gire this answer to that ; 
that Hopkms proved that Gybbon acted, and so 
he was warden in law ; 1 canuot tell what con- 
ditioD Gybbon was in, and what security he 
had given ; Huggins was liable for all escapes. 

1 hare taken pains to state the evidence to 
you as fully as I can ; and I hope you^ill con^ 
aider it ; and that God will direct you to do for 
the best 

Then one was sworn to keep the Jury, and 
they withdrew, and Mr. Justice Page and 
Mr. Baron Carter left the bench ; and Mr. 
fleijeant Raby with the lord mayor remained 
there ; and in about two hours aud an half the 
Jury returned. 

Clerk of Arraigns. Are you all agreed in 
your rerJict ? — (hnnes. Yes. 

Clerk. Who shall say for you ? 

Omnet. Foreman. 

Clerk. John Huggius, hold up thy hand. 
(Which he did.) L(x>k upon the prisoner : Is 
he Guilty of the felony and mnrder whereof he 
■tanda indicted, or Not Guilty ? 

Foreman. We are sgreed to bring in our 
f erdict special to the Court. 

Att. Gen. What is there doubt in point of 
lawr 

8eri. Rahy. What that doubt is, must be re- 
ferred to the Court. 

Foreman, Was there any medium between 
inghiin in Guilty or Not Guilty ? 

Serj. Raby. You may find the fact specially, 
and refer the special matter to the Court. If 
any matter of law arises upon that doubt, it 
will be explained. You may give a general 
?f rdict in order to refer that to the judgment 
of the Court. You must agree upon the fact ; 
you must state the special matter : It is usual 
Io state the point of law that you doubt in. 
U yM have toy doubt ai to the law, that you 



Trial qfJohn HugginSf 

must refer to the Court ; but aa to the 
you must determine yourselves. 

Ait. Gen, What is it nMkes the qu 
doubtful P 

Serj. Raby. The jury do believe the pi 
in some messure guilty, but not of the 
indictment. 

Foreman. We cannot find any of th 
deoce come up to shew be was aidiog, ab 
and at^ting'bames in putting him ii 
room. 

Seij. Raby. Call over the jury. 

Cl.rfArr. Answer to your names. (^ 
they did.) Are you all agreed in your vc 
Is John Huggins Guilty of the murd< 
felony whereof he stands indicted, o 
Guilty ? 

After considering sometime among 
selves, the Foreman spoke as follows : 

Foreman. We agree the prisoner wi 
cessary to the murder committed upon £ 
Arne, but that it was not premeditated in 
that he lias been privy to the cause < 
roan's death, and might have preven 
Two witnesses swore, that Mr. riuggi 
at the door of the dungeon, and saw 
there ; and, as he did not discbarge him 
time, he was accessary to that. 

Serj. Raby. If lie wss privy, he was 
of that: if he was privy ana consenting, if 
concur in that act, he is guilty; for 
implv malice. 

If he died by duress, and he was cone 
and consenting to it, then he was guilty 
act, in that he had power to redress it, \ 
not. If he was privy, you must consid* 
was concurring. 

Att. Gen. If he was privy and consec 
does imply it. 

In all special verdicts the jury nev* 
malice. 

In no special verdict they find ma1ic< 
Foreman. 8evei*al of us don't thii 
guilty of the malice. 

Atl. Gen. The law will imply the mi 

Serj. Raby. You are to consider and j 
fact. 

Foreman, We all agree that Arne i 
duress ; there are two witnesses to prov 
but that the prisoner had no forethough 

The Jury again considered among 
selves; but not immediately agreeing 
drew, and staid out some considerable Ui 
then relumed. 

Clerk of Arraigns, Are you all agreei 

Foreman. ** W e are agreed, that ther< 
ficient evidence to prove, that they s 
Hugt^ius at the strong room. 

** We agree that he was warden of tl 
prison ; and that he was head-wardei 
time the fact happened, as mentioned in 
dictment ; and that Gybbon was dept 
acted as such. 

*' That James Barnes appeared Io u 
servant to Gybbon, and was emploj 
acted under him* in taking car« of tha pi 




Jor Ifie Marder o/Edwsrd Arn 



A. D. I72i 



■rani Arae, iu ihe in- j durets ol'lha raid imiirisoDmral antl ilctaining 
, tben and tbere a prtMner in id the roum alorctaiil, ilied, \a wit, at Luodun, 
being: they Inrtiier find, that &!C. Aiul they furtlier liiid, ihnt durini; the 

"" "' "'' '■" ' ' " " iddelaiiiini-uf ihewiJ BdHuril 



■, iheTlh or September, 
m't" I9th ynr, ttc. in and upon (lie laid £d- 
Mrt Arae, a ftriauDor Iu the same priiou theu 
■ iftnMalil li«ui^, in manner and foroi as in 
ttaaaliMlivinMnt i* >|iv('ifiBd, made an t$- 
a^ ■ I bfin Ihe itid Edward Arne, then and 
IkR vnlioul hi* consent, in manner anil Ibroi 
■■•be ■aiil indleliaent iaipeeilieil, touli, and 
im A« •*><! Edward, Arne to a cerlaln room 
MfeM iIm> luid priwn then newly huill, in the 
■■• ndictnicnt tnenlioned, wiihout hi> <.'on- 
■M. !b niautfer, flee, eonreycd and led, and 
t^ tke aaid Edward Arne, in Ihe auid room 
Itr a laog; line, to tvH, fiir ilie space of rnrly- 
InTdata from tliencF next following', without 
Ike MMcnl of liini the said Edward Arue, In 
■MMr.Aco, rtnntlEOnrd auti detained, and him 
to tMd Edminl Arne, (h«n and ilieret for all 
to lim* laU'tnciKioned in that room, < ahaqne 
*MlMMin* iffnia nevnun sine aliqua matula, 
■^■pbia, it\ ali^no aliodujustnodlutensili,' [□ 
hmlta anil be Hiihinit hia eongeni iu roinner, 
fet forcctl : aad liiey I'urther find, that the 
••Ikaf Ihe aajdnuim were made of bricks and 
flnv I and al lh« aaid lime of the impriion- 
tmt nt iIm aaiil Edwiinl Arne in the same 
n^ my dam]! ; and that (he said room was 
Mate uicr (he connnon se(Ter of Ihe aaid pri- 
aa, near tlie place ■ alii Konles el finiiis pri- 
' «ne prwda'tff necnon eicrcnienta prii'in^rio- 
' t^B pne'dl<\toruiii adtiino iiaualiter p<wiia fiie- 
'•W,' by mann whereof (lie uiid ronm wsb 
tnfin' imwhutesDme, and if really danfferous 
■ toUe uf any perton daliined in (he same: 
mai Ibej further liiid, that the said James 
toss, at ibcaaid lime of (lie imprisonraeni of 
to M«d EilwBtd Arne in thai room, well knew 
tot Ae caid room had then lieen newly built ; 
ni ibM (be traUi of thai room were itiuile of 
teiifta Odd DiorUr, and were llien rery damp ; 
aalthat Hie mid room wan siluate so aa atbre- 
m1; aod (bey further llml, that during the 
«U iftfiMdiDeiit, and detaining of (he said 
Mwanl Ariie In iIk' «Aid room, to wit, liy ihe 

nof Aftcrii days at Uaat before Ihe deaih 
■ said Edward Arne, the said John Hug- 
fio* hMv that the aaid room had been ihen 
Wwly built, and tliat ihe walls of that room 
nn mmI* af brichi and inoilar, and then were 
fcap; but whether the said Johu Hugging 
lanr, ilMrtsn theiaid 7th day of Heptembcr, 
is IIm 19<ti vrar, \<:. ihe jurors know nul : anil 
■brj fan\%*t fmrl, ihitl die said Edward Arne. 
toiH* ihr tiid itn|>riLaiiiiielit and detaining of 
fcha lb: Kul Edward Aine in tbs said roiiro, to 
W. Ac HHh da^ uf liie same month of Sep 
* ' in llir J'ilh year abotesaid, by diircai 
i«« im|iri*>>DiDenl and delainiii|;, b«< 
fc IB (he laid room ; anri iherehy from 
c loih day uf Hcpi*mlier, ill (he 13(1 
•nud, until thr VWh iliy of (Ictubri 
n IWlhiwIntf , ill Ihe said mom lan^ish' 
al 20Uid»y «1' Oolubcr, in Ibi 



rftoM 




imprisoniDcni ai 

AriiC in the ssiil room, to wit, by the H)iace ol 
lilleen days at least before the ileaih of'ihE said 
Eilnard Arne, Ihe said John Huitt^ins was 
loce preseiil at the said room, and iheu and 
here saw the said EHward Arne in that room, 
inder the duress of ihe said Imprisonment, and 
Ihen and there lumed away ; and the aaid 
James Barnes locked the door of Ihe ramt 
room, al the sunie lime in whicb (be w\<\ John 
Hii^ltiDS turned away al alilreaaid (ihe tauic 
Edward Arne. at the laiil time in whii.-h the 
aaid door was locked by tlie said James Barnes, 
being in (he said room iindf r duress of tlie said 
imprison men I.] And they fjnlier And, that 
the said Edward Arne, in ihe Kiid room, ainler 
duress of the said imprisonment remained, and 
was cominueil from the eaiil lime in which Ihe 
said door of the said room waa sn locked by the 
■lid JanuM Barnes as atbresiid, nnlil the said 
hich (be said Edward Arne su as 
aforesaid died ; and they t'urlher Bnd, that the 
soil! John Huifgin* sometimes acled aa warden 
or keejier of the aaid prison, daring the line iK 
which be the sam« Thomaa Gyhlmn was de- 
puty of llie said John Hii|;ginH in (beaaidoE- 
llce as atbresuid; but whether upon the whols 
inatler," ftc. 

The Record of this Indictment and Special 
Verdict bein^ removed into the Kini^'s-tiench 
by C'erliurari, it waA argued on 'I'uMday the 
leih ol Jniie, 1730, by >lr. tVilles, liir the 
kin^ i and Mr. Serjtiuit Eyre, for the priaoncr. 
And on the lait dny uf Michaelmas lerm Ibl- 
lowing, atier the case bad been arf;ufd on the 
14th of November, Bl(ier|eant's-inn- hall, hettire 
all the twelve judges, the lord chief -justice 
(Raymond) deUierral the opiuioo of the judt^es. 

In this case two questions have been made, 
first. What crime the facts foonil ujuki Barnes 
in ihe !^pecial Verdict will amuunt lo i Second, 
Whether the nrmnner at tlie bar is found guilly 
of the sume offence with Barnes f 

First, As lo Ihe lirsl question !( is very plain, 
(hat (he facts Oniml upon Barnes do anwunt to 
murder in hiui. Murder may he cummitteil 
without any stroke. Tbc law has not cuiifineil 
the olTence tu any purticuinr cn'cumstuiices or 
manner of killing i hut there are as many waya 
to commit iniirder, as lliere are tii di-itrov « 
man, pnirided the act b« dune wllh mafir«, 
(iiher express or implied. Hale V. V. -id, 8 
tuM. ;)V. Murder is, where a fierwon kills anii- 
Iher of ibiidiiii!, so he dies wilhin a year niid k 
day. Hale P. C. 43. And malice "niny he 
either expresaed or implied. In (liiit caw th« 
jury ha*e toiind ihe molioe exproM ; fur (he 
facia chxrgeU on Barnes ore laid inllie indict- 
mei't lo be * ex msliliaiiua iineimirilala,' In wil, 
ilial he, liavinn the eusindy nf Arne. assnulied 
him, and carried him to Ihisuuwholcsoine room, 
and conBiieil liim Ihere by tbrce auunisl hia 
will, aad witboiU bii c«BNat,«id wi 



871] 



8 GEORGE II. 



Trial of John Huggtust 



[9» 



dictment sets forth, << That Joho Hnggini, 
from the 1st day of October, in the 12th year 
of the late kinff, to the 1st day of January next 
following, andlongf before and after, was war- 
den of the prison of the Fleet, &c. and that 
James Barnes was, darioff that time, serf ant to 
John Huggins, and empToved abont the care 
of the prisoners ; and that James Barnes, * ez- 
' istens persona crudelis nature et immanis 

* dispositionis erga prisonarios in eadem prisona 
■ ezistentes,' on the 1st day of Noyember, in 
the 12th year, Sec, made an assault upon one 
Edward Arne, then being a prisoner in the 
same prison, under the custody of the said 
John Huggins, and him the said Edward Arne, 
then and there, with force and arms, &c. un- 
lawfully, feloniously, wilfully, and of his ma- 
lice aforethought, and without the consent of 
the said Edward Arne, took, and him with force 
and arms, &c. to a certain room, within the 
prison aforesaid, then newly built, unlawfully, 
&c. conveyed and led, and him the said Ed- 
ward Arne, with force and arms, &c. in the 
said room, for a long time, to wit, for the space 
of six weeks, then next following, unlawfully, 
&c. imprisoned and detained, and him the said 
Edward Arne, then and there, with force and 
arms, &c. for all the time last mentioned, in 
that room, ' absque solamine ignis nccnon sine 
« aliqua matula, scaphio, vel aliquo alio hujus. 

* modi utensili,' unlawfully, &c. forced to re- 
main and be (the walls ot tlie aforesaid room, 
made of bricks and mortar, at the aforesaid 
time of the imprisonment of the said Edward 
Arne, in the same, being very moist, and the 
room aforesaid being situate over the common 
sewer of the said prison, and near the place 

* uhi sordes et iiinus prisonie predictoe necnon 

* excrementa prisonariorum pnedictorum ad- 
' tunc usualiter posita fucrunt,' by reason 
whereof the room aforesaid then nas very un- 
wholesome, and greatly dangerous to the life 
of any person detained iu the same.") And 
the indictment further sets forth, ** That the 
said James Barnes and John Iluggins, at the 
said time of the imprisonment of the said Ed- 
ward Arne in that room, well knew that the 
said room had then been newly built, and that 
the walls of that room, being made of bricks 
and mortar, were then very moist, and that the 
said room was mi situate as af(»resaid." And 
the indictment fiiithcr sets forth, ** That the 
said Edward Arne, during the imprisonment 
and detaining aforesaid, iu the said room, viz. 
the 7th of November^ &c. by duress of the 
same imprisonrntnt and detaining, liecaine sick, 
and thereby from the same 7th day of Novem- 
ber, until the 7th day of DeceinlH?r, then next 
folluvving, in the room aforesaid, languished, 
on which said 7th day of Decenilier, the said 
Edward Arne, by duress of the imprisonment 
and detaining aforesaid,- in the room aforesaid, 
dieil," &c. The indictment further sets forth, 
** That the said John Hoggins, being a person 
of a cruel nature, and savage disposition, and a 
grierouB and inhumane oppressor of the pri* 

IB the iiuiM priaoBi undtr hit custody 



being, during his said imprisonmeiil and de- 
taining of the aforesaid Edward Arne, in tht 
room aforesaid^ viz. the said 7th daj. of No- 
vember, &c. and divers other days and tinwii 
during that imprisonment end detalnioff, al 
London, &c. feloniously, wilfully, end of In 
malice aforethought, was present, aiding, tkd^ 
ting, comforting, assisting, and maintaioijf 
the aforesaid James Barnes, fekmiously, wt 
fully, and of his malice aforethoughtt the wui 
Edward Arne, in manner aforesaid, to kill lai 
murder : and so theiurora afbresaid, apoD tbek 
oath aforesaid, say. That the said Jamee BenM 
and John Hoggins, the said Edward Arne, it 
manner and form aforesaid, feloniooslyy wiU 
fully, and of their malice aforethought, did kil 
and murder, ag[ainst the peace,*' dte. 

On Not Guilty pleaded by the priaoacr, 
Huggins, the jury find a Special Verdict, u 
follows : *■ That queen Anne, by her hetM 
patent, bearing date the 93d of July , in the ISA 
year of her reign, granted to John Hnggim^ 
named in the indictment, the office of wuda 
or keeper of the Fleet, and keeper of the priMm, 
and gaol of the Fleet, situate, &o. and of ths 
prisoners then committetl, or to be committd 
to the prison and gaol of the Fleet aforesaid ; 
and the capital messuage for the custody of tlN 
prisoners, and thirteen messuages in the pariifa 
aforesaid, and all other messuages, &c. and all 
that rent, fee or salary of 7/. 12f. Id, yearly, 
pB\-able and to be paid by the hands of the she- 
riffs of her city of London, and her oonnty d 
Middlesex, Ike, and all other rents, &c. sod 
him the said John Huggins, warden or keener 
of the Fleet, and of the prison and gaol of the 
Fleet aforesaid, for herself, her heirs and soe- 
cessors, did make, ordain, and constitute, bj 
the same letters patent : to have, hold, enjoy, 
and exercise the said office, messuages, lawn 
&c. to the aforsesaid John Huggins, by bimi 
self, or b^ his sufficient deputy or deputies, (bi 
and during his natural lite, in as ample mil' 
ner and form as sir Jeremy Wbichcot, barond 
or any otiier warden of her prison of the Flee 
aforesaid, the said office and other the pre 
misses, or any of them, had before had, held 
used or enjoyed, or ought to have bad, held 
used, or enjoyed ; with the usual averments 
anti they farther find, that the said John Hug 
gins, 1st of ^^eptember, in the ISlh of tlie lat 
king, and for <livers years before, and oonti 
uuully from tliencc after, until the 1st of Jl 
nuary then next following, was warden < 
keeper of the naid prison of the Fleet ; and thfl 
one Thomas Gybbon for all the same time wi 
deputy of the sjid John Huggins in the ni 
ofhce of warden or keeper of the prison of tl 
Fleet aforesaid, by the same John Huggn 
appointed, and acted as such bis deputy : aa 
they further find, that James BaroeB,'in*tl 
indictment nametl, for all the same lime wi 
servant of the said Thomas Gybbon, depoly t 
the said John Huggins, in the same office i 
as aforesaid being, and acted under the MU 
Thomas Gybbon, 6ce, in and about the eai«i 
the prisoners committ e d to the aaii PIMMi h 
2 




^T the Murder ofEdteard Artie. 



I, iben an<l there a prisoner in 
a lietngt tbey I'anhcr Auil, llint 
_ * Banin, the Tlh of September, 

liAa IStfa jicsr. Sec. in and npnn tbe aaid Ed- 
•■ri 4rar,*a priaoner in ibe uune primu then 
nyiRMwJ ttftag, in mannt^r and torni as in 
lb*ii<io<licim«nt it apeciBed, made >0 as- 
tMh.lBi1 Itiin the said Edward Acne, llien anil 
llv laiUtiiiil Ilia cniiii(rnt, in manDcr and farm 
■■ Ibe *Bwl imlialinL-ot it tpecilied, took, and 
Mi tta* avid Bdwanl, Arne to a certain room 
•Mm ibo uid priKiii then tietrly built, in the 
•■i tniliniuvpl ineiitliined, wiihout his unu- 
ai, m manaer, Ace. convened and led, and 
km tltt taM Edward Ante, in llie avid room 
Itr • laag timv, (a nit, fur ibe space ot fiirty- 
bar day* rtwu ijiirnce next rollnwinui'. vtitliout 
Ibt OBKunt or him the tniil Edward Ame, in 
tmmm,6ie, implMHiHl auu daUined, and bim 
••■mI Edward Anie, ibwi and there lor all 
Ife* IMM lMt-«nent)(ineit in that room, ' alnqne 
'MlHtisc iffnii a#unno tine altijua tnatula, 
'■afbia, til aliauo alio liiijneroodi ulensili,' to 

kt fcmni -. and they further ttud, that Ibe 
lali of tbe toid room were made of bricks aud 
^nff ] anil ax Uie (aid time of tbe imprison- 
■Mt of tbe laid Eilwurd Arna io tbe tame 
•■• tcry d»mp ; and Ihat the said room waa 
aMMotert)i« commnn sewer of the said pri- 
a% nMr die place ' nbi snrdes et (imiis prl< 
*m^ prBdii-iK necnnn eiuretnenta |iris<in»rJD- 
'ns ofwihctorum adtnno utualiier piwiin fiie- 
*(■>,' by rt««Dn whei«of Ibe soid rwm was 
ta*an noitboleaoDla, andgreaily dan^rous 
l«4«Mcufany peraon detained in Ibe aame: 
miHttj further llnd. that tbe said Jnmea 
IkIM, al tile (aid lime of the ioiprisoament of 
lk««Ml Eilward An>e in that room, well knew 
tbUAsBM) niom had then btan newly built; 
md Ifan Ibe nillB of that room virre made of 
taafta and mortar, and were then very damp ; 
tad that iIm' mid ronm wat ailuale bo as afore- 
«mI: aod Ibey lutther llnd, that dnring tht 
wit in|iri«iBioeiit, and dclainiDg of ibe said 
UvanI Am* in tbe auid room, to wit, hy Ibe 

nsf llltem days al Uatt before the death 
t ttid Rdward Arne, the said John Iliig- 
finBk>r* tkat the asid room had been then 
kEwljr built, and that ibe walls of that ronm 
Mt» otMfe of bricks and iiiorlsr, and then were 
4ra|l; but whether Ibo «aid John Hnttcios 
knoi, ibii nil ihe sDid 7th day of Se|ilember. 
i<(- jurori knownot: tnd 
liii' aaid Edward Arne, 
-'iDisut and detaining of 
Vi lie in llie said roiim, bi 
i< il,.: \uili <l,i\ (.1 tiic same month ol'Sep. 
MMvr, Ml Utc riib ypar RboTe»id, by durcai 
(ftha tatne in)|iri«iiiitoent and detaining, ba- 
I ibc taid riiniD ; anij thereby from 
I Kitli duy of Hepleiiiber, in tbe 13ll 

Cahavcaaiii, until ibe <imh day of Otitnbei 
■m hllowiD|[, III tbe said room lanf^ttb- 
4- M^ iluy of Ueh^r, in lbs 






duressof Ihenaid imprbuDinenl and i)eiaiiii 
in the room afnrenaid, died, to wit, at Londuo, 
&ic. Aud ihey further Aud, thai duriiiir the 
iprisonment and ilelainin;j;ul'lbe aaid Eilword 
'ne in llie said ruum, w wii, by the siiace of 
HIteen days at least before the death of the said 
Edward Arne, the said John Huc^int was 
once present at ilic said iwtin, and then auiI 
ibere saw the said Eilwaid Arne in that rooiu. 
under ihe duress of the said i in prison in eiit, aud 
then and there tnmed away ; and the nid 
James Barnes looked Ibe door of tlii- ram* 
room, at the same time in which tbe stud J'lhu 
Hitcgins turned away aa nlbrrsaid (the Miiiie 
Edivard Arne, at the niil time in wliicb the 
fflud door was locked by tlir said Janies Ilame*, 
being in ifae said room lunlcr duretis of llie said 
imprisiiniiieot. ) And they furilier find, that 
Ibe laid Edward Arne, in the siid room, nndec 
iluress of tbe said iniprisonmenl remained, and 
Iras continued IVom the said lime in uhicb the 
said door of ihe said room was to locked by the 
■aid J a met Bamcsas aforesaid, until tbe said 
time in which ibe said Edvard Arne so as 
aforesaid died ; and they further And, thai the 
said Juhn Hui;gios sonietimes Bcled aa warden 
or keeper of ihe said prison, duriae the time in 
which be the sniiie Thomas GyblioD wasde- 
puty of the said John Hitgigins in Ibe suid of- 
fice as aforesaid ; but whether upon Ihe wbot« 
luatler," fee. 

The Record of this Indictment and Special 
Verdict beiiiBT remoied into the Kini;'s-I>ench 
by Ceriiurari', it was argited on 'I'undiy the 
iblb of June, 1730, by Mr, Wi)let, fur the 
Ving ; and Mr. Serjeani Evre, for tbe priwiner. 
And ou the last duy of Michselrats teem fol- 
lowing, after tbe cose bad been argunl on Ihe 
IMb ot'Nnvember, at 8er|eaat's- inn-hall, befi>re 
all the iwelie judges, the lord chict-justice 
(Raymouit) dettiered tbe opinion of the judge«. 
In this case two t|Uestions have been made, 
Hrst, Wbal crime Ibe facts found U)>nii Baraea 
m ibe Sjiecial Verdict will Miimunt to F Second, 
Whether ihe nrisnner allhu bar is tiwad guilty 
of the same offence witb Tlarnes ? 

First, As to Ibe tiret ifueMioo it is rery plain, 
that the facts found upon Barnes do aninuiit In 
tniirder in him. Murdn may be commiiled 
without any stroke. Tbe law has not confined 
IbeoOence lu uny partiouUr circunistuncet or 
manner of kilbng; butihereareasmauy waya 
to comuiit niunler, as there are l<> dr'^iroT ■ 
man, |>ri>Tidvil ibv act bo dune witb malioe, 
Kit her «K press or implied. Hale P. C. -Iti, 3 
Inst. it. Murder is, where a iiemun kilfs ana- 
ttier of ibatiOiF, so be dit« wilbin a year and a 
day, -Hale P, O. 43. And malice iiiay be 
either eapreaseil or implied. In tbi* case the 
jury have I'oiind the malice iriipress ; liir the 
facta cb urged on Bameture laid inlhcindict- 
meiil to b« ' ex mahlia 'na ptwcni^iiata,' Io wit, 
ibtl hf, liasinf! the custody of Arne. oBHinlled 
him, and carrit'd him to this unwhoksome room, 
and confined him Iheiv by tbrcv ausins: bis 
will, tttid witbout bit G«iMuit,aad withuut pro- 



873] 



S GEORGE II. 



Trial of John HuggifUf 



[376 



per support, * ex maliiia sua preecofloUU ;' by 
means ui wliicli he laiiguittlieti and died. And 
Ibe jury have found that Baroeii did all these 
facts, * luodo et iurma prout in indictamento 

* pnedicio s|iecifticatur.' 

ilut upon tiudiui^oi' these facts tlicreis also a 
plain malice arising in construction of law. 
l£ule P. C. 46. The law implies malice in re- 
spect of the person killiupf. If a prisoner, bv 
durtss of the gaoler, comes to an untimely eniT, 
it is murder. It is not necessary to make it 
duress, that there should be actual strokes or 
wounds. And in 3 Inst. 55, the potting into a 
duu^j^eon is duress, or into a place toe strait, S 
Inst. 01,* pluis arctmentque defoit,' Cromp. 
VO, I'he untimely end, nieniioned by lord 
chief justice Uale, is what is meant by Briton, 
cap. 11, fol. 18* If a man die in prison, the 
coroner is to take an inquest upon the view uf 
the body ; and if it is found by the inquisition, 
that the person was brought nearer to death, 
and faitner. from life, * per dure gard del 
gaoler,* it is felony. 

The reasons why the law implies malice in 
■uoii cases are plain. Because it is a breach of 
Lis duty, and of the trust which the law has re- 
jjosed in him. A prisoner is not to be punished 
in gaol, but to be kept safely. Flet. 38, 
Bract. 105. The act also is deliberate. And 
the nature of the act is such, as that it must 
apparently do iiarm. It is also cruel ; as it is 
committed upon a person that cannot help him- 
self. And it is committed by force, and without 
the consent of the prisoner. So that the charge 
in} the indictment against Barnes is murder ; 
and the^e facts thund in the verdict, as to 
liiui, fully maintain the indictment, and amount 
to murder. But Barnes is not before the Court, 
lie having tied (as it is said) fi*om justice. 

Second. The next question is, Whether the 
prisoner, lluggins, is found guilty of the same 
offence as. Barnes ; or how far it appears, by 
this Special Verdict, that he has bten aiding 
and assiikting to Barnes in the committing of 
these facts i* 

In the indictment the offence is as strongly 
charged upon Huggins as upon Barnes. The 
indictmeni charges, that the prisoner at the bar, 
duiing the impribonnientof Arne in the said 
room (the situation and condition of which the 
indictment expressly charges Hoggins to have 
the knowledge of), on the 7(h of November, 

* et diversisjdiebus ct vicibus,' during that im- 
prisonment, feloniously, voluntarily, and of his 
malice aforethought, was present, aiding, abet- 
ting, comforting, aud assisting the said Barnes, 
the said Arne felnniously, and of his malice 
aforethought, to kill and murder, i3cc. which if 
found by the verdict, would certainly be murder 
in the prisoner. But there is a great diflereuce 
in Uie finding the verdiiit. As to lluggins, the 
jnry have only ibuud tbe«e facts, viz. That be 
had the office of warden i>f Che Fleet, &c. 
granted to him by letters patent of 22 Juiy, 
la Ann. to hold for his life, and to execute by 
himself or hbi deputy: That he, 1 Sept. 12 
Geo. 1, and befort and from thtuMto 11 Jan. 



12 Geo. 1, was warden of the Fleet: That 
Tliomas Gybbon was, and for all thai time 
acted as his deputy in that office: that Jamci 
Barnes was for all that time servant of Gybboo, 
aud acted under him about the care of the pi> 
sonerfy and particularly about the care of Arne: 
tlien tiiey find, tliat Barnes assaulted ami ovw 
ried by force the said Arne into the room, ntf 
kept him there against his consent, prout in At 
indictment, forty-four days: then tbev iai 
the situation and condition of the room, wnerdiy 
it was very unwholesome, aad dangerous to tM 
life of any person kept therein : that^ Huy- 
gins, during tlie imprisonment of Ame ie tM 
room, viz. tor fifteen days before Arue's death, 
knew that the room was then lately built, aad 
that the walls were made of brick and moitar, 
and- were then damp ; but whether be knew it 
the 7th of Soptember, ignorant : that Ame, tbt 
10th of September, 12 Geo. 1, by duress of 
imprisonment, became sick, and laoguiahed It 
tile 20th of October, and then died uy duKti 
of imprisonment in the said room : that during 
the imprisonment of Ame in that room, via* 
' |>er spatium quindecim dierum ad minut' be- 
fore his death, lluggins was once present tt 
that room, and then saw tlie said Ame in ihH 
room, * sub duritie imprisontmenti prndicti te 
adtunc et ibidem teavertit,' and the said Jtmai 
Barnes, the same time as Hoggins turned bin* 
self away, locked the door ; the said Ame,tt 
tlie time when the said door was locked kf 
Barnes, being in the said room, * sub duilit 
' imprisonamenti probdicti ;' and that Amt le* 
mained under that duress till his death : ihit 
Uug^ins acted sometimes as warden, dudig 
the time Gybbon was deputy : but it is Ml 
found that he acted as viardeii during the coo- 
finementof Arne. 

The judges are all unanimously of oninioii, 
that the facts found in this Special Verdict dt 
not amount to murder in the prisoner al tks 
bur ; but as this S|iecial Verdict is found, they 
are of opinion that be is not guilty. Though he 
was warden, yet it being found that there was a 
deputy, he is not, as warden, guilty of the facts 
committed under the authority of his deput^r- 
He shall answer as superior for bis deputy Of 
villy, but not criminally. It lias been settled, 
that though a sheriff must answer for the of^ 
fences of his gaoler civilly, that is, be is sub* 
ject in an action to make satisfactioii to the 
party injured, yet he is not to answer criminally 
for the offences of his under officer. He onlj 
is criminally punishable who immediately dos 
the act, or permits it to be done. Hale P. C. 11^ 
So that if an act be done by an under offiotr, 
unless it is done by the command or directiOBp 
or with the consent of the princi|Md, the prindh 
pal is not criminally punishable tor it. In this 
case the fact was done by Barnes ; and it ■# 
where appears in the S|)ecial Verdict, tbalth* 
prisoner at tlie bar tver commanded, or dired^ 
ed, or consented to this duress of imprisoomtali 
which was the cause of Arne's death. 1. Nt 
commaud or direction is found. And 8. It is 
not found that Uuggint knew of it. Thil 



377] 



Sot the Murder ofEchoard Ame. 



A. D. 1729. 



137S 



vhich made the durets in this case wai, 1. 

fiuvci's carrying' and puttinff, and oontining 

Ana inthiaraom by force and aj^inst his con- 

hbL S. The aituation and condition of this 

1MB. Now it ia not found that H uffgina knew 

if Iheif ae? eral circuinstanceti, which made 

lb duiesa. 1. It is not found that he knew 

Hj tkio); of Barnes's carryin^^ Arne thither. 

I. liirthat he was there without his consent, 

« eilhaut proper support. 3. As to the room, 

ila Aood by the verdict, 1. That the room 

aahailt of bricks and mortar. 2. That the 

wikwtrevaide humida, 3. That the room 

■HBtnate on the common sower of the prison, 

■rf Mir the place where the fihh of the prison 

nd e»cre ro ent of the prisoners were nsually 

W, ratiome quorum the room was very un- 

ehaitasme, and the iifo of any man l^ept there 

vas ia unreal daiif|rer. But all that is found 

viib reaped to the prisoner's knowledge is, 

dat for fifkeen days before Arne's death he 

ibat the room vras then lately built, re- 

'; that the walls were made of brick and 

r, and were then damp. But it is not 

Bor does it appear, that he knew they 

vera dangcrouB to a man's Iifo, or that there 

aaa a want of necessary support. Nor is it 

kmk that be directed or consented that 

inadMold be kept or continued there. The 

" thiD^ relied upon is, that the verdict 

that once the prisoner at the bar was 

at the room, and saw Arne ' sub 

iaprisonamenti prosdicti, etse avertit,' 

fa. which, aa was objected, made him an 

ukt and abettor. But in answer to this, 1. 

Uif present alone, unless he knew all the 

oicmnances, and directed that Arne should 

pswisas, or at least consented that he should, 

caaaoi make him an aider or abetter in the 

aarder. Kelyn^e 113. A man may be pre- 

seal, and be entirely innocent, lie may be 

cnually present. H, The verdict is, * vidit 

Mb duritie iinprisonamcnti prwilicti.' lie 

BJI^t see him, and see him while he was 

*iiibdaritie imprisonamenti prteJicli,' that is, 

vbite be waa in lact under the duress by 

baraea ; but it does by no means follow from 

tbcDce, tliat he knew that the man was under 

this durtas, and it is not found that he did know 

it It was objected, that if husaw the man 

under this darcss be must know it, and it was 

Im duty to deliver him. But we cannot take 

tkiopiby inference in this manner. The vidtt 

does not imply a knowledfre of the several t'uiis 

Ikai made tlie duress. If the nature of this 

da wM be considered, it is impossible that it 

ihaald be discovered by one sight of the man. 

llOMMHStsoi several in||^re(HenUi and circum- 

», that are not necessary to be discovered 

sight: for thoujjh he saw Arne in the 

y«t by the view be could not tell that he 

Mre without his consent, and by force, or 

he wanted necessary relief. It in not 

that the man made any complaint to 

hsiier that anv application was made to him 

«4e naa's bebalt. If be was there with his 

it vooU lake offtha darass. His see- 



ing is bat e? idenoe of his knowled^ of these 
thingfs at best, and very poor evidence loo. And 
therefore the jury, if the fact would have home 
it, should have found that Hngfrina knew thiit 
Arne was there without his consent ; and that 
he consented to and directed his continuance 
there. Which not being done, we cannot in- 
tend these thingrs, nor infer them. For in spe- 
cial verdicts in criminal case^ the Court mtist , 
never intend nor infer facts, but judge upon the . 
facts found, and not on the evidence of the 
facts. Kelyufre 78. Whether a man is aiding 
and assisting in murder or no is matter of fact, 
and ought to be expressly found by the jury. ; 
Kelynge 111, Rex vers. Plummer. It does 
not appear by the special verdict there that 
Glover, or the person unknown, who shot off 
the gun, did discharge it against any. of tbe 
king's officers, but it might be for aught that 
appears for another purpose : though npon the 
particular circumstances in the special verdict 
there are things found Svhich were a sufficient 
evidence, that the gun was discharged agaimt 
the king's officers, and ao it might be reason- 
ably intende<l, considering they were all armed, 
and in prosecution of an unlawful act in the 
night, which they designed to justify and 
maintain by force; especially when the gun 
waa shot off upon the watch-word given ; and 
as the king's officers were endeavouring to 
seize the wool ; the jury thereupon might well 
have found that the tusee was discharged 
against the king's officers.* But since (they 
had not found it, the Court were confined to 
u hat they had found positively ; and were not 
to judge the law upon evidence of a foot, but 
upon the fact when it is found. See Kelynge, 
11». 

This case was so well argued on both aides^ 
that some objections on the part of the crown 
must be taken notice of, thou^^h they are al- 
ready in a great measure anticipated. As, 

1. That llus|[gins, as warden, though be 
had made a deputy, had still the care of ine pri- 
soners ; and it was incumbent on him to see 
that there was no illegal duress : and to ex- 
plain what the law means by duress, Brit. cap. 
11, fol. 18, was cited. If a prisoner is brought 
nearer to death and farther fruin life * per dure 
* gard del keeper ;' andStaunf P. C. lib. 1, cap. 
35, if he keeps him more strictly than of right 
he ought, it is duress. And the duress need not be 
by the hand of theij^aoler ; for if it is done with 

* 1 take it thai the point on which the case 
turned was this, it did not appear from any 
of the facts found, that the gun was discharged 
in prosecution of the purpose for which the 
party was assf^iubled. But had it been posi- 
tively found, that it was discharged against the 
officer or his assistant, the Court, u|>on this find- 
ing, might, without encroaching on the pro- 
vince of the jury, have presumed that it was 
discharged in prosecution of their original pur- 
pose. In cases so circumstanced, Rc$ ipiui lo- 
quitur. Foster's Iteports, p. 352. Former 
£dition. 



379] 5 GEORGE 11. 

his privity, it will affect him. Bot that is a 
mistake ; for when an officer has power to 
make a deputy, and has appointed a deputy, 
he has discharged himself of the whole care : 
the deputy has the whole power, and it is in- 
cumbent upon the deputy till the principal re- 
sumes his office. Indeed, when the principal 
comes to execute his office himself, the power 
of the deputy ceases ; but a bare accidental 
comings to the place will not determine the de- 
putation, unless he comes with an intent to re- 
sume his office. The case of a disseisee comiugp 
to dine with a disseisor, or to see his pictures, 
nkay be very properly compared to this. 

3. It was objected, that this murder was 
done with his privity ; it is found that he saw 
Ame under this duress, et se aver tit. He ought 
to have taken notice of it, and removed him, as 
it was his duty to take care of his prisoner's 
life. Vidit sub duritie implies that be knew it ; 
and therefore he was privy to the duress of 
which Ame died. 

But his consent to this duress is not found ; 
it entirely depends on his seeing the man, which 
does not import his consent, for want of his 
knowledge of the particular facts. 

Sd Objection. When he was present, the 
power of his deputy ceased ; and then he 
should have eased the man of this duress ; and 
his suffering him to continue afterwards under 
the same duress infers that be knowinglj[ suf- 
fered him to continue till his death ; and his not 
reforming this abuse implies his consent to it. 
But these inferences are by much too strong ; 
and the not reforming an abuse does by no means 
infer a consent to all the consequences of it. 

4th Objection. A person absent may be 
principal in murder, as m the case of poisoning. 
An infant was laid in a hog-stye, and a sow eat 
it; and held murder. Palm. 547, 648. The 
same opinion in the case of a sick man laid in 
the cold. So in the case of laying an infant 
under leaves in an orchard, and a kite struck if, 
Poph. 13. Ow. 98. Hale P. C. 53. There the 
person who did the act occasioned the death ; 
but in this case no act was done by the prisoner 
at the bar. There are indeed cases of murder 
where no act ^^as done by the persons guilty, 
as the letting loose a wild oeast, which the party 
knows to be mischievous, and he kills a man. 
3 £dw. 3. Conine 311. Staunf. 17. Crompt. 
S4 b. the owner of the beast is guilty of mur- 
der. In answer to those cases, there is a dif- 
ference between beasts that are Jcra Jiatura, as 
lions and tysfers, which a man must always 
keep up at his peril, and beasts that are man^ 
iueta nuturay and break through the tameness 
of their nature, such as oxen and horses. Jn 
the latter case an action lies, if the o\>ner has 
had notice of the quality of the beast ; in tlic 
former case an action lies without such notice. 
As to the point of felony, if the owner have no- 
tice of the mischievous quality of the ox, Src. 
and he uses all proper diligence to keep him 
up, and he happens to break loose and kills a 
man, it would be very hard to make the owner 
guilty of fdony \ butif throagh negligence tht 



Trial of John Huggim^ 



[SSO 



beast goes abroad, afVer warning mr notioe of 
this condition, it is the opinion of Hale (H. P, 
G. vol. 1, 431,) that it is manslaughter in the 
owner. And if he did purposely let htm loose 
and wanderabroad, with a design to do mischief; 
nay, though it were but with a design to frigjbt 
people and make sp<»rt, and he kills a UMUiyitii 
murder in the owner. 

5th Objection. It is fonnd that Barnes abet 
the door in the presence of Huggins ; ani 
therefore the continuing of Ame un£r tbatOMH 
fineraent will hffect Huggins. But there is no 
consent found to his cunfiiiement. What is 
found is, at most, but evidence of a oonssnt ; 
and even not that, it is only vidit ei se 0veriit, 

6th Objection. Jt is not necessanr for thejnry 
to Gnd the con.sent in express words, and if facts 
are foiud that amount to a consent, the Conit 
will judge it a consent. As in the case of ma- 
lice, the Court will judge it upon the fadi 
found ; and malice is an act of the mlndaawdl 
as consent To this it is answered, that malice 
is matter of law, and proper for the Court Is 
judge, but the consent of one man to the mali- 
cious acts. of another, is matter of fact wbkh 
ought to be found by the jury. And here il 
no consent fonnd, nor that Huggins aided er 
abetted Barnes ; nor is there any poeitive fad 
found, that must necessarily be conitrned u 
aiding and abetting. 

There is another matter which the kiag^ 
counsel insisted upon, that if the Court were cf 
opinion that they could not ^ive judgement npea 
the facts found m this verdict, that the ptissoir 
was guilty of murder ; that yet the verdicts 



so uncertain, as that they could not give indy- 
ment of acquittal : and therefore, that a Veurt 
Facias de novo ought to go. And this brousfat 
it under the consideration of the judges, whe- 
ther a Venire Facias de novo ought to be grant* 
ed in this case. And to speak to that poiitv 
the counsel on both sides were heard liefnie iB 
the judges on Wednesday the 24th instant. 

It was said by the counsel for the king, thai 
they spoke to tnis point without prejudice. For 
they insisted, that as to the verdict itself tfwre 
were sufficient facts fonnd affecting theprisonefi 
to induce the judges to be of opinion that thej 
amounted to murder. But for argument's sake^ 
in case the judges should he of opinion, that 
thoy were too uncertain to found a resolution 
upon, that the prisoner was guilty of murder, 
then they argued that a Venire l^icias de novo 
ought to go, though it was in a capital case. 

1. In a civil r^se, if a verdict is found so nn* 
certainly and ambiguously as that no judg- 
ment can be given, a Venire Facias de novo 
must issue. Co. Lit. S27. 8 Roll. Abr. 69S« 
Venn. vers. Howell. Cro. Car. 323. 

It was observed that the book of Co. Lit. MT, 
speaks of verdicts in general, and does not saj 
in what cases : but as to civil cases there is no 
doubt. 

2. In criminal cases writs of Venire Fi- 
cias de novo have been granted. Co. Inter. 599$ 
b. Uil. 4. Car. 1. B. R. rot. 92. Rex v. Fisher. 

8. In capital cesei a Venire Faciu dte nete 



3S1] 



^ the Mi&dtr of Edward Arne. 



A. D. 1729. 



[dSS 



■lilt CO. 1. ' Id caies of mis-trial. 6 Co. 14. a. 

Anio&l's case, the point ag^ed. ^. For mU- 

Whaviour of the jury in g^iviug in their verdict. 

Ril. 8 Hen. 7. rot. S. piacit. re^« Rex vers. 

Wayoer. Ap-eed. 3. As to grantiD«|^ a Venire 

Fieas de doto, afier a special ferdict found, 

ihiy were so candid as to ovrn, that though 

thaic was search made with the greatest dili- 

gMep,yet they could not find one mstance, nor 

■ Hans an opinion of a judffe, except what 

wad by lord chief-justice Holt, in the Case 

flf if Kinff vers. Keite, Comberb. 408.* Holt 

mpt '* I snoald not be much af^ainst a Venire 

dr Mfo." (Coaiyns 17.) And this was re- 

~ B«d by some others that heard that opi- 

The jurv had found in that case that 

Miner had killed the man ; but it did not 

eslMily appear whether the fact was murder 

sr Muisiaii^ter. Mr. Attorney General in- 

Hled, that if there was soch an uncertainty, as 

ittt no indigent could be |firen in a capital 

cat ; tte same reason held m such case as in 

Ml and other criminal cases ; though there is 

M precedent of it as yet ; for * uhi eadcm est 

"niw, est eadem lex.* And therefore sup[>os- 

■|(lbr in th'is it was argued upon a supposi- 

lin)that the. verdict was too uncertain to gi\e 

jaifBeBt against the prisoner, they insisted 

tea Venire Facias de novo ought to go. 

Bit the judges came to no resolution, that a 
VoiK Facias de novo could not issue af\cr a 
ipNial verdict in any capital case ; it being un- 
MBoniy for them to determine that question : 
flv aa cvcrv special verdict depends upou the 
pBliular finding of the verdict, so the nreseut 
~ B relates only to the present verdict be- 
as found. And as tu that we tvcre all of 
I, that this verdict was not so uncertain 
u ifcst judgment could not be given u)>oii it. 
Piribe facts found arc all positively fuund ; 
batthoae facts in the nature of tlieiu joined to- 
|Clber, are not sufficient to make the prisoner 
gttihjof munler. And if so, then the prisoner 
mit be acquitted ; for it is not that the verdict 
if naeertain, but it is not full enough to convict 
kin. Perhaps the jury uiight have found other 
tos which they have not, but the Cotirt can 
jad^ only upon what is fouml. (Kel^ng, 7U, 

* 8.C. d Mod. 987. SVinn, QOQ. 



AnaiK 



79.) We all agreefl in the case of Green and 
Bedell, on a special verdict, that the verdict was 
not full enough as to them, for us to jud^e it 
treason in them ; because the verdict only found 
that they were present, and found no particular 
act of force committed by them ; and did not 
find that thej were aiding and assisting to the 
rest. And it is possible they might be there 
only out of curiosity to see ; and whether they 
were aiding and assisting is matter of fact, 
which ought to be expressly found